City of Gary v. McNulty

Wood, J. The appellant appeals from a judgment recovered against it by the appellee for damages sustained on account of personal injuries, suffered by appellee, when he fell upon a defective sidewalk, alleged to have been negligently maintained by appellant. The errors assigned for reversal are, overruling appellant’s demurrer to appellee’s complaint, and overruling appellant’s motion for a new trial. The complaint contained the usual allegations incorporated in such complaints, where the cause of action is based upon negligence on the part of a city in failing properly to maintain sidewalks in a safe condition for the use of pedestrians. Among these allegations was one, that notice of the accident and resultant injuries was served upon the appellant as required by Sec. 11230, Burns 1926. Appellant’s demurrer to the complaint questioned the sufficiency of the facts alleged therein to state a cause of action. Three paragraphs of memoranda, all of the same tenor and effect, were filed in support of the demurrer. They questioned the sufficiency of the notice served upon the appellant by appellee to meet the requirements of said Sec. 11230, supra. The notice read as follows: “NOTICE to the City of Gary July 6, 1931. “The City of Gary is hereby notified that one Robert McNulty intends to and is going to hold the City of Gary liable in damages for personal injuries caused him and resulting from a bruise on his right leg, which developed into blood poisoning, *643 which bruised leg he sustained at about 11:30 P. M. on the 16th day of May, 1931, 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, in the City of Gary, Lake County, Indiana, which defect is an abrupt elevation of about one foot, of the concrete sidewalk on the northern end at the above particular point after an aperature in the concrete sidewalk of about one year which aperature is of nothing but sand, so that where the concrete sidewalk begins at the northern end of said aperature, it begins at an elevation of about one foot above the aperature, and that sand is so caved in from beneath of the concrete sidewalk that it sticks out and forms a very abrupt and crude ledge, which ledge is unguarded and unlighted, and which ledge caused the above injury to the said Robert McNulty while he was rightfully traversing the said sidewalk. “Service of the above notice upon the Mayor of the City of Gary is hereby accepted and acknowledged this 6th day of July, 1931. R. 0. JOHNSON MAYOR OF THE CITY OF GARY Irvin McClellan Attorney for Robert McNulty.” The provisions of this section of the statute are mandatory. The giving of the notice is a condition precedent to a right of action. The statute is strictly construed in its requirement that notice be given within the specified time and to the proper officers. But on the question whether a notice in fact given is sufficiently definite as to the time, place, nature, and extent of the injury, the rule of liberal construction is generally adopted by the courts. We think the notice contained facts sufficient to inform the. city officials of the time, place, nature, and extent of the injuries, so that by the exercise of reasonable diligence, and without other information from the ap *644 pellee, they could find the place where it was claimed the accident happened, resulting in the injuries. It directed their attention with reasonable certainty to the place of the accident. This answered the intent and purpose of the statute. “It was not intended that the terms of the notice should be used as a stumbling block or pitfall to prevent recovery by meritorious claimants.” City of East Chicago v. Gilbert (1915), 59 Ind. App. 613, 108. N. E. 29, 109 N. E. 404; Town of French Lick v. Allen (1917), 63 Ind. App. 649, 115 N. E. 79; City of Terre Haute v. O’Neal (1920), 72 Ind. App. 485, 126 N. E. 26; McComb v. City of Chicago (1914), 263 Ill. 510, 105 N. E. 294. The demurrer was properly overruled. The only causes alleged for a new trial discussed in appellant’s brief are Nos. 1, 2, 3, 16, and 25. In cause for a new trial designated as No. 3, appellant complains of the ruling of the court in admitting in evidence over its objection, the notice of the accident served upon appellant by appellee. What we have already said concerning the ruling of the court on appellant’s demurrer to the complaint disposes of this question. The notice was properly admitted in evidence. In cause for a new trial designated as No. 6, appellant complains of the ruling of the court, in refusing to permit a witness called to testify for and on its behalf to answer a question propounded to him on re-direct examination, over the objection of appellee. While the motion for a new trial sets out the question, it does not set out the objection or the substance thereof, made to the question, nor does it set out the offer to prove or the substance thereof, or the answer which it expected to elicit by the question. The allegations of the motion are not sufficiently definite and specific to present any question for our consideration. Indianapolis R. R. Co. v. Ragan (1909), *645 171 Ind. 569, 86 N. E. 966; Greer v. State (1929), 201 Ind. 386, 168 N. E. 581; Kenwood Tire Co. v. Speck-man (1931), 92 Ind. App. 419, 176 N. E. 29; Gaines et al. v. Taylor (1933), 96 Ind. App. 378, 185 N. E. 297; Fletcher v. Stutz etc., Co. (1933), 96 Ind. App. 398, 168 N. E. 585; Emrich Furniture Co. v. Valinetz, (1933), 96 Ind. App, 668, 185 N. E. 654; Hampton v. Travelers Ins. Co. (1933), 97 Ind. App. 488, 187 N. E. 212. In causes for a new trial designated as Nos. 16 and 25, appellant complains of the refusal of the court to give to the jury instructions Nos. 8 and 17 tendered by appellant. We have examined all the instructions given to the jury by the court of its own motion, those given at the request of appellant, and those given at the request of appellant as modified by the court. The substance of appellant’s instructions Nos. 8 and 17 which the court refused to give to the jury were covered by other instructions which the court did give. The refusal of the court to give these instructions was not error. Finally in causes for a new trial designated as Nos. 1 and 2, the appellant contends that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. To sustain this position appellant asserts that the uncontroverted evidence shows conclusively that the accident resulting in appellees’ injury was the result of his own negligence proximately contributing thereto. In order to accept appellant’s position, we would have to be able to say from the evidence in the record, and all reasonable inferences to be drawn therefrom most favorable to appellee, that he was himself guilty of negligence proximately contributing to his injury. But the evidence on the question of contributory negligence on the part of appellee is not susceptible of the interpretation *646 placed upon it by appellant. The evidence on this phase of the case is conflicting. Under such circumstances negligence and contributory negligence were questions of fact to be submitted to the jury for its determination, and the jury having found against appellant on these issues, its verdict will not be disturbed. Dondono v. City of Indianapolis (1909), 44 Ind. App. 366, 89 N. E. 421; Allied Coal Co. v. Moore (1928), 88 Ind. App. 253, 157 N. E. 55; Virgin v. Lake Erie, etc., Co. (1913), 55 Ind. App. 216, 101 N. E. 500. Judgment affirmed. Kime, J., concurs with opinion.