City of Gary v. McNulty , 99 Ind. App. 641 ( 1935 )

CONCURRING OPINION. This was an action for damages on account of personal injuries which the appellee sustained while walking on a sidewalk in the City of Gary. Notice of the accident had been given to the city. The notice disclosed that appellee had sustained the injury "by virtue of a defect in and upon the sidewalk of Washington Street on the East side thereof and North of Fourth Street and in front of the premises located at 349 Washington Street and the vacant part adjoining the premises at 349 Washington Street." The complaint alleged that this notice had been given within the statutory time and contained the allegations usually found in complaints of this character, which complaint was attacked for alleged insufficiency of notice by demurrer. Judgment was had against the city and appellant filed a motion for a new trial, which was overruled. The overruling of this motion and the demurrer are assigned as errors.

Appellant contends that the notice was insufficient because it does not contain a brief general description of the place of the accident and for the further reason that it does not state the cause of or the nature of the injuries alleged to have been sustained. § 11230, Burns Revised Statutes, 1926; § 12512, Baldwin's 1934. The appellant says that the exact location could not have been in front of 349 and also in front of the part adjoining, but as I interpret the notice I believe that, in accordance with the liberal construction that should be given such notice, the location was described with sufficient clarity and definiteness to meet the requirements of that section and I hold the notice to be sufficiently "definite in itself to enable a person of ordinary capacity with knowledge of the physical conditions of the streets, in the exercise of reasonable diligence, to locate the place of injury," which this court has held to be the law in the City of East Chicago v. Gilbert (1915), 59 Ind. App. 613, 622, 108 N.E. 29, 109 N.E. 404; Townof French Lick v. Allen (1917), 63 Ind. App. 649, 115 N.E. 79;Sollenbarger v. Linville (1909), 141 Iowa 203, 18 Ann. Cas. 991. And especially the first case, in which the court quotes, with approval, the following language from Carr v. Ashland (1883), 62 N.H. 665, 669:

"If the statement so designates the place that the officers of the town, being men of common understanding and intelligence, can, by the exercise of reasonable diligence and without other information from the plaintiff, find the exact place where it is claimed the damage was received, it is in this respect sufficient because it fully answers the purpose of the statute."

The notice also stated that the plaintiff sustained a bruise on his right leg by virtue of a defect in the sidewalk, which statement in reference to the injury I think is sufficient under the statute, and consequently there was no error in overruling the demurrer to the complaint.

Under the motion for a new trial the appellant contends that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, and makes the point under this that the notice was insufficient. What I have already said as to the demurrer effectively disposes of this proposition.

The appellant contends that the evidence shows that the appellee was guilty of contributory negligence. The evidence discloses that the appellee, together with a companion were walking along this street, in the nighttime, and that the street lights were burning and that he came to a place in the sidewalk where he encountered sand; that he did not change his pace and that at the junction of the sand and concrete portion was where he struck his shin on the protruding part of the sidewalk; that it was light enough so that he could tell the difference between the sidewalk and the grass on the side of it, as he walked along. The appellant contends that since appellee did see the obstruction after the injury and since he could and did see the difference between the sidewalk and the grass that he could have seen the obstruction, had he been looking, immediately prior to the accident, inasmuch as the obstruction was some fifteen or more inches in height and directly in his pathway. This is not such a state of facts that this court can say, as a matter of law, that appellee was guilty of contributory negligence and it was, therefore, a proper question for the jury.

The appellant also makes a special point of the fact that appellee did not check his pace but walked right ahead at the same gait that he was going before he encountered the sand. It is difficult to see how the speed at which the plaintiff walked has anything to do with the injury which he sustained. Even though he were negligent in this respect it is highly improbable that a slower pace would have enabled him to discover the obstruction in his way and avoid the injury. The speed of his pace, therefore, cannot be considered as a cause of the accident. I think this contention has been effectively disposed of in Mahoney v. Beatman (1929), 110 Conn. 184,147 A. 762, 66 A.L.R. 1121, which case Harper, in his "Treatise on the Law of Torts," says is "an excellent illustration of the entire application of these rules of contributory negligence in their most difficult form," section 134, page 299. In that case plaintiff was driving a car at an excessive speed and collided with defendant's car, which was being driven on the wrong side of the road. The driver of the plaintiff's car saw the defendant's car approach him from the wrong side of the road, but the collision ensued and the court allowed a recovery for the damage done. Harper further says, in reference to that case: — "On analysis, the case may be made to illustrate the most intricate instance of the principles herein considered. This analysis would seem to be somewhat as follows: — defendant was admittedly negligent in driving on the wrong side of the road, and the general class of harms threatened is clearly broad enough to include all the hazards which the plaintiff encountered. There were all of the class of generally foreseeable harms threatened by such conduct. Plaintiff's excessive speed likewise constituted negligence with respect to the entire sequence of harms encountered. They were all reasonably foreseeable, in a general way. It is known that excessive speed multiplies the hazards from collisions and loss of control thereafter. Accordingly the plaintiff's negligence may quite properly be set off against the defendant's negligence, since both are of the same type and pertain to the same risks, if the plaintiff's negligent driving was a legal cause of all the damage. To constitute a legal cause, of course, it must first appear that such conduct was a cause in fact of the damage. It would seem that there is a serious doubt whether the plaintiff's speed can be regarded as a cause in fact of the initial collision, as the accident quite properly would have occurred anyway in view of the nature of the defendant's driving. A number of well considered cases have so held." In any event it would seem a proper question for the jury whether the plaintiff's speed contributed to the impact or whether the initial collision would have occurred anyway. If it did not so contribute, he is not barred from recovering for such initial collision, for his conduct would not be a legal cause if it was not a cause in fact of the collision.

From the above it would seem to me that there is serious doubt whether the appellee's pace can be regarded as a cause in fact of the collision with the protruding sidewalk.

As to the appellee's contributory negligence it does not appear to the court that the evidence is so strong that it can be said that, as a matter of law, the appellee failed to conform to the standard of reasonable care by failure to use his faculties for his protection. The appellee was required to use only those precautions which a reasonable man under the circumstances would regard as necessary. In the Restatement of the Law of Torts, section 283, the rule is stated to be "Unless the actor is a child or an insane person, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances," and that is the law in Indiana. Cityof Valparaiso v. Schwerdt (1907), 40 Ind. App. 608, 82 N.E. 923.

The appellant also complains of error in the refusal of the court to permit a witness to answer the following question: — "Now, if you were down 202 feet and walked along the sidewalk, state whether or not, in your opinion, when you reached a point 202 feet away you would readily see that obstruction as you looked toward it?" There was no error in the refusal to permit the witness to answer that question as in the preliminary question, prior thereto, it had not been definitely established that the circumstances to which he was attempting to testify were the same as those encountered by the appellee on the night of the accident.

The appellant also complains of error in the refusal to give instruction numbered 8, requested by the appellant. This instruction specifically directed the jury's attention to a particular ground for contributory negligence, which appellant contended was applicable, however, this had been embodied and properly instructed upon by the court in the court's own instructions and it was not error to refuse to give appellant's instruction, since the substance had been covered by other instructions. Hurst v. Reeder (1927), 86 Ind. App. 294,157 N.E. 101. An additional reason is that it was altogether proper for the court to refuse to give this instruction because it would, in effect, only tend to emphasize one particular fact, as shown by the evidence, to the exclusion of others and to lead the jury to infer that this one fact was important and the others were of less importance, all of which would be an invasion of the province of the jury. Danville Trust Company v. Barnett (1916), 184 Ind. 696, 111 N.E. 429.

The appellant also complains of error in the refusal of the court to give appellant's instruction numbered 17, relative to intoxication. I believe that the jury was fully instructed on this point by instruction numbered 18.