City of Columbus v. Goodnow, Admx. , 91 Ind. App. 6 ( 1929 )

Action by appellee for damages sustained because of the death of her husband, James L. Goodnow, alleged to have been due to the negligence of appellant. The complaint is in one paragraph, to which appellant answered by general denial. Trial by jury, which resulted in a verdict for appellee assessing her damages at $2,500, on which judgment was rendered.

The error relied on for reversal is the court's action in overruling appellant's motion for a new trial, under which is presented that the verdict is not sustained by sufficient evidence, that it is contrary to law, and that the court erred in instructing the jury.

It is averred in the complaint that appellee's decedent died June 30, 1927, as the result of injuries sustained the same day on the west side of Washington Street, near the intersection of Sixteenth Street, in the city of Columbus, Indiana; that Washington Street was a main traveled street at the time of the accident, and the official detour of state road No. 31, and that the track of the Interstate Public Service Company ran in the center thereof; that five or 10 days prior to June 30, 1927, appellant city, by and through its officers, agents and employees, negligently deposited a pile of sand, consisting of from one and a half to three yards, in the traveled and paved portion, on the west side of said street, in a dangerous position, from five to 15 feet south of the south curb line of Sixteenth Street which extended into said Washington Street; that said Washington Street was a public highway and a street within the corporate limits of appellant city, and, as such, the city was under a duty to the public to keep it free from defects and obstructions; that none of the sand was to be or was used in the repair of Washington Street, and that appellant, in the exercise of ordinary care, could and should have deposited the sand on another nearby side street or alley, of which there were several available for said purpose, and not on the main traveled portion of Washington Street, which was then in use as the main state highway between Indianapolis and Louisville, and occupied by railroad tracks, and that there was no necessity for placing said sand on said street, and the same was an obstruction and a defect therein; that appellant negligently failed to place at or near said sand pile any warning of any nature to warn the public of the dangerous nature of said obstruction, and negligently failed to place a barrier or railing around said sand to protect the travelers on said street from injury, and negligently and carelessly allowed said sand to become spread out over the street, and, on June 30, 1927, said sand extended into Washington Street, east of the west curb, eight to 12 feet, and was from one to three feet in height; that said city negligently allowed said sand to remain on said street for an unreasonable length of time, to wit, from five to 10 days; that, about 5 o'clock p.m. on June 30, 1927, appellee's decedent, a resident of the city, as a traveler, was riding his bicycle east on Sixteenth Street, and, upon approaching the intersection of Sixteenth and Washington Streets, he turned south onto Washington Street, and was confronted with, and his way obstructed by, said sand pile which appellant city had negligently placed too near the intersection of Sixteenth and Washington Streets, and had negligently allowed to become spread out over the street without any warning of any nature; that decedent, being confronted with said obstruction, on account of an automobile then being driven at from 20 to 30 miles per hour from the north on the west side of Washington Street, found himself in a dangerous situation, and, in endeavoring to extricate himself from his position of sudden peril, and in turning said bicycle out around said obstruction, was struck and fatally injured by said automobile; that the negligence of appellant city in placing said sand pile in the traveled portion of said street, in placing it too near the intersection of said streets, in allowing it to become spread out and to occupy a large portion of the street, in failing to place thereon any warning of any kind to protect travelers on said street, and in allowing said sand to remain on said street an unreasonable length of time, was the proximate cause of the injuries and resulting death of appellee's decedent; that appellee was dependent upon the decedent for support, and was damaged $10,000.

Appellant makes no contention that it was not negligent in depositing the sand in the street as averred and proved, but contends that appellee's decedent was guilty of 1, 2. contributory negligence. The burden so to prove was on appellant, and, the jury having found from some evidence that the burden was not discharged, this court will not disturb the verdict on the weight of the evidence.

There being some evidence from which the jury might conclude that the decedent was not guilty of contributory negligence, the court did not err in refusing to give appellant's tendered 3. peremptory instruction to return a verdict for appellant.

Appellant waived any objection to the notice of injury, and of appellee's contention that appellant was liable therefor, which notice appellee served on it, by failing to present the same to the trial court. Halstead v. American Magnestone Corp. (1925), 84 Ind. App. 205, 149 N.E. 698.

The court gave eight of 15 instructions tendered by appellee, 15 of 19 instructions tendered by appellant, and 12 instructions tendered on its own motion. We have read these instructions carefully, and we have to say that the jury was well instructed as to the law of the case. We find no reversible error.

Affirmed.