City of Indianapolis v. Barthel

Ewbank, J. This was an action for damages for negligently causing the death of Mabel Barthel, whose husband sued as administrator of her estate. The alleged negligence consisted of permitting the surface of Madison avenue for some distance south of an iron pole standing therein, at the intersec- . tion of Palmer street north of the J. M. and I. Railroad tracks, in the city of Indianapolis to be and remain in a defective condition, by reason of being filled with holes, bumps and projections. And the complaint alleged that while plaintiff’s decedent was riding as a passenger in an automobile in said street, these defects diverted the wheels from their course, and caused the automobile to run against said iron pole, and that plaintiff’s decedent was thereby so injured that she died. The notice served on the city within sixty days, pursuant to the provisions of the statute (§8962 Burns 1914, Acts 1907 p. 249), recited that the pole was in the center of the street, that the entire east side of the street was defective, that the automobile while being driven north was driven “into the center of the street near the west car tracks to avoid the rough places”, that the front wheels struck the holes and projections in the surface of the street and they threw the automobile “out of its path to the left and the hub of the [276] left front wheel of said automobile collided with said iron pole”, and caused the injury. The complaint alleged that the automobile was being driven between “the east car tracks”, when the wheels struck the defective surface of the street and “violently diverted the course of the machine to the northwest”, and caused the hub of the left front wheel to strike the pole, and the evidence tended to prove that this was the way the injury was caused. Counsel for appellant insist that there was a variance between the statement in the notice and the facts proved, and assert that an automobile driven “near the west car tracks” would necessarily be on the west side of the street. Waiving the question whether the statutory requirement of “a brief general description of the time, place, cause and nature of the injury” would call for a statement of the precise spot on the street where the wheels struck the alleged defects, we do not think there was any variance. The notice stated only that the automobile was driven “near the west tracks”, and alleged that the defects in the street threw it “to the left”, and that the hub of the “left front wheel” was thereby thrown against the pole in the center of the street. These facts clearly showed that the automobile running north was east of the center of the street until diverted to the left by the defects in the street, and could not mislead appellant into believing that in driving “near the west track” the automobile was on the west side of the street at the time of the injury. Appellant complains of the giving of certain instructions and the refusal to give certain others. But there is no bill of exceptions reciting what instructions were asked, what were given or what were refused, nor the fact that any exceptions thereto were reserved; and no attempt was made to reserve exceptions by a signed and dated indorsement on the [277] margin of each instruction, under the provisions of §560 Burns 1914, §535 R. S. 1881, nor by signing the several requests for instructions, or procuring the judge to sign those which the court gave of its own motion, and to sign memoranda in writing indorsed on those requested indicating by numbers which of them were given and which refused, or by taking any steps whatever to identify the instructions and to reserve exceptions under §561 Burns 1914, Acts 1907 p. 652. And since the instructions are not made part of the record, we cannot consider any questions in relation to them. The injury was sustained at Indianapolis in January, 1917. The case was tried at Columbus, forty miles away, in October, 1919, after the lapse of two years and nine months, having been taken by change of venue to Shelby county on motion of plaintiff, and then to Bartholomew county, on motion of defendant. Plaintiff’s witnesses testified that the holes in the street had been patched since the accident, and that the iron pole that was struck by the car in which plaintiff’s decedent was riding at the time of the accident had been removed from the street. Under these conditions, the trial court did not abuse its discretion in refusing to send the jury to view the place of the injury. Appellant complains of the exculsion of offered testimony of a conversation by the mother of decedent with appellee (now the administrator) after the accident and prior to the death of decedent, in which the witness told him that decedent needed better medical attention and should be sent to a designated hospital, and that, if he did not send her there, he would be responsible for her death. This was not error. The mere fact that appellee was appointed as administrator after the death of the injured party would not make his admissions before her death competent evidence against [278] the estate. Neither did the offer to prove include an offer of testimony that he admitted the truth of what the witness had said to him. And the suit was for the benefit of a six-year old daughter of the deceased, as well as the husband who was acting as administrator, and the child could not be bound by recriminations that passed between her father and her grandmother. Appellant complains of a lack of direct evidence that the scene of the accident was within the city of Indianapolis. But facts were proved from which the jury had a right to infer that it was. And the court will not reverse a judgment for informality of the proof of a fact when it is obvious from the evidence that the fact exists. A witness testified that the alleged defects in the street had existed for several years. This was enough to charge the city with notice of them. Michigan City v. Boeckling (1890), 122 Ind. 39, 42; City of Valparaiso v. Chester (1911), 176 Ind. 636, 642, 96 N. E. 765. Some other questions are discussed in appellant’s brief, but it wholly fails to show that they are presented by the record, or to point out the pages and lines of the transcript where the facts relied on and appellant’s exceptions, if any, may be found. The judgment is affirmed.