dissenting.
I dissent.
The instruction given was proper.1
One allegation of negligence as set out by the appellants was “2. That the City failed to have a police officer there directing traffic when said City should have known of the hazardous nature of said place.” This certainly alleges a failure of the City to supply general police protection.
The facts in general in Simpson’s Food Fair v. City of Evansville (1971), 149 Ind.App. 387, 272 N.E.2d 871 are similar. In that case the appellants alleged that the City failed to assign extra police where the City knew and should have known of the high incidence of criminal activity in appellants’ neighborhood (such being a hazardous condition). The alleged negligence is the same as in this case.
The instruction given sets out the principle of law established by Simpson’s Food Fair v. City of Evansville, supra, and was certainly relevant to an issue formulated by the pleadings and trial as demonstrated by the allegation of negligence. The trial judge instructed the jury both in the preliminary instructions and final instructions.
“The plaintiffs claim the defendant, City of Evansville, was negligent in one or more of the following ways:
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“2. The City failed to have a police officer there directing traffic when the City should have known of the hazardous nature of the intersection.”
This instruction certainly would convey to a jury that the City could be negligent if it failed to supply general police protection.
Therefore, the trial court did not err in giving the instruction.
Furthermore, even if it was error to give the instruction, neither the appellants nor the majority demonstrates in what manner that error was prejudicial.
The appellants, in addition to establishing that an error has occurred, must also establish prejudice. Merry v. State (1975), Ind.App., 335 N.E.2d 249; Henderson v. State (1977), Ind.App., 364 N.E.2d 175. Appellants have failed in this respect.
I would affirm the trial court.
. “You are instructed that the City of Evansville cannot be held liable for damages suffered as a result of the City’s failure to supply general police protection. [City of Gary, by and through its Department of Redevelopment and the City of Gary v. Ruberto, 354 N.E.2d 786 (1976). Also, Simpson’s Food Fair, Inc. vs. City of Evansville (1971), 149 Ind.App. 387, 272 N.E.2d 871].”