Central Amusement Co. v. Vannostran , 85 Ind. App. 476 ( 1926 )

ON PETITION FOR REHEARING. Appellant complains earnestly that it was reversible error to permit evidence that other persons had stumbled and fallen at the same place at other times, but authorities of this state, in addition to those cited in the original opinion, as well as the authorities of other states, fully justify us in holding otherwise.

In the City of Indianapolis v. Scott (1880), 72 Ind. 197, the action was for damages because of personal injury to the plaintiff resulting from the negligence of the city in permitting a certain gutter-crossing to be out of repair. The plaintiff was permitted to prove the condition of the gutter and crossing more than a year after the accident happened, on the statement of the plaintiff that she would produce evidence that there was no material change in the condition, and it was held that there was no error in the admission of such evidence.

In the City of Fort Wayne v. Coombs (1886), 107 Ind. 75, 7 N.E. 743, the action was for injuries resulting from a defective sewer. The trial court permitted the plaintiffs to prove that there was a break in the sewer about 100 feet distant from the point where the break occurred which caused the injuries for which a recovery was sought, and it was held that such evidence was competent, in connection with other testimony in the case, for the purpose of charging the city with knowledge as well as for the purpose of showing that the materials used were defective, or the work of construction was not well done.

In Indianapolis, etc., Traction Co. v. Monfort (1923),80 Ind. App. 639, 139 N.E. 677, the action was for personal injuries to the plaintiff caused by the negligence of the defendant in permitting its track and railroad line at a public highway crossing to be in a dangerous condition. Evidence of other accidents of a similar character, at the same place was admitted, and the court, holding that there was no error in its admission, stated the rule to be that: "It is a well-established principle that collateral evidence is admissible to show the happening of prior occurrences of a similar character under the same circumstances as the one involved, upon the ground that it tends to show that the place of the accident had been demonstrated to be unsafe and dangerous." There was petition to transfer this case to the Supreme Court which was denied. Authorities from other states to the same effect are: Morse, Admx., v. Minneapolis, etc., R.Co. (1883), 30 Minn. 465; City of Aurora v. Brown (1882), 12 Ill. App.? 122-130; Walker v. Town of Westfield (1867), 39 Vt. 246; Shea v. Glendale, etc., Fabrics Co. (1894),162 Mass. 463; Lowe v. Alton Baking, etc., Co. (1910), 158 Ill. App. 458; Smith v. City of Des Moines (1892), 84 Iowa 685; Cityof Emporia v. Kowalski (1903), 66 Kans. 64; Hunt v. City ofDubuque (1895), 96 Iowa 314; City of Kankakee v. Phipps (1907), 135 Ill. App. 585; City of Topeka v. Sherwood (1888), 39 Kans. 690, 18 P. 933; Cook v. New Durham (1887), 64 N.H. 419,13 A. 650.

Petition for rehearing denied.