City of Whiting v. Eagan

83 N.E. 1016, 41 Ind. App. 377, 1908 Ind. App. LEXIS 174

• Court: Indiana Court of Appeals
• Decided: March 11, 1908
• Docket: No. 6,016
• Status: Published

Opinion

Roby, C. J.

Action by appellee for damages on account of personal injuries alleged to have been sustained by reason of a defective sidewalk in the city of Whiting. A demurrer to the amended complaint was overruled, a general denial filed, trial had by a jury, verdict for $2,000, and judgment upon the verdict.

The appellee, Burnadette Egan, a child twelve years of age, was, on the evening of October 31, 1903, passing along a sidewalk.in said city, exercising due care for her safety, when she stepped on a part of the sidewalk which was worn and rotten. It gave way, and permitted her leg to pass through the walk, whereby it was braised and lacerated, and her right hip injured, “hip disease” resulting therefrom, the permanency of which could not be agreed upon by the expert witnesses.

Seven alleged errors are relied upon for a reversal, fifty-three reasons being enumerated as causes-for a new trial. Two assignments go to the sufficiency of the complaint. None of the objections to the complaint are well taken, and it is needless to discuss the legal propositions relied upon, which may indeed be conceded without affecting the sufficiency of the pleading.

1. Three of the assignments go to the sufficiency of the evidence. The bill of exceptions containing the evidence covers 486 typewritten pages. It has been carefully reviewed and found to support the verdict on material points.

2. The alleged grounds for a new trial based upon the improper admission and rejection of evidence are not discussed by appellant in its brief; nor is the ground for a new trial — that the damages were excessive— more than mentioned.

3. The damages are not excessive. Cincinnati, etc., R. Co. v. Worthington (1903), 30 Ind. App. 663, 96 Am. St. 355; Creamery, etc., Co. v. Hotsenpiller (1902), 159 Ind. 99.

4. Instructions refused, so far as they expressed applicable propositions of law, were embodied in those given, for instance: instruction five requested by appellant was, in part: “Still, if you find that the plaintiff’s negligence in any way contributed to her injury, then she cannot recover -in this action.” And instruction sixteen, given by the court of its own motion, was, in part, as follows -. ‘ ‘ Still, if you find that the plaintiff was also negligent in using the sidewalk, or in the manner of using it, and that she was injured by reason of such negligence, then she cannot recover in this action. ’ ’

Appellant has, attempted to point out error in more than a dozen of the twenty-three instructions given by the court. Some of these objections are immaterial, and at least three of them are founded upon a mistake as to what the instructions, which are set out in full in the brief, actually were. A categorical discussion of the points argued by appellant would extend this opinion beyond reasonable limits, without serving .any good purpose.

There is no reversible error in the record, and the judgment is affirmed.