City of Terre Haute v. Johns , 82 Ind. App. 483 ( 1925 )

Nichols, J.

Action by appellee against appellant for damages resulting from a personal injury alleged to have been received by appellee because of a defective sidewalk in appellant city.

The only error relied upon is the action of the court in overruling appellant’s motion for a new trial, under which appellant presents error of the court in refusing to give instructions tendered by it and that the damages assessed were excessive. The substantial facts as appear by the evidence are that there was a hole in the sidewalk in a thickly populated part of the city which had been there for nine months or more. There is some variation in the evidence as to the size of this hole, but there was ample evidence that it was as much as four or five inches wide, about seven inches long and five inches deep at one end. It is sufficient to say that it was deep enough so that when appellee stepped into it, she was caused to fall thereby and suffered the injury for which she seeks damages in this case. The evidence further shows that appellee was injured August 30, 1921, at which time she was and had thereto fore been in good health and had been theretofore doing her washing and housework. She was a large woman, weighing over 200 pounds. When she stepped into the hole, she fell to the sidewalk, her foot remaining in the hole until removed by persons who came to her rescue. She was so injured that she was confined to her home, and part of the time to her bed, for ten weeks and was thereafter unable to attend to her work up to the time of the trial. During all of the time, she suffered great pain. We deem it unnecessary to specifically describe the injuries which she suffered as appears by the evidence.

While appellant has, as one of its reasons for a new trial, assigned that the evidence was insufficient to sustain the verdict of the jury, and that it was contrary to law, it has not presented these questions in this court. Having carefully examined the evidence as it appears in the briefs, we are satisfied that the cause was properly tried upon its merits and that a correct result was reached. Under such circumstances, this court will not reverse because of error in refusing to give instructions. We may say, however, that we have examined the tendered instructions that were refused and we find no error in their refusal.

Judgment affirmed.