Neal v. Home Builders, Inc.
Decision Date | 23 March 1953 |
Docket Number | No. 29027,29027 |
Citation | 232 Ind. 160,111 N.E.2d 280 |
Parties | NEAL v. HOME BUILDERS, Inc. et al. |
Court | Indiana Supreme Court |
Owen W. Crumpacker and Crumpacker & Friedrich, Hammond, for appellant.
Fansler, Fauvre, Young & Chambers, Michael L. Fransler, Irving M. Fauvre, Howard S. Young, Jr., and David L. Chambers, Jr., Indianapolis, amicus curiae.
Glenn D. Peters and G. Edward McHie, Hammond, Peters & Highland, Hammond, of counsel, for appellee.
This action was commenced by the filing of a complaint in one paragraph by the administrator of the estate of Shirley E. Neal, deceased, to recover damages resulting from her death caused by the alleged negligence of appellees.
The complaint was amended and a demurrer thereto was sustained for want of facts sufficient to state a cause of action. Plaintiff (appellant) refused to plead over and judgment was rendered against him, from which he appealed. The sustaining of the demurrer is the sole error assigned.
The relevant parts of the amended complaint are as follows:
'(5) On June 10th, 1946 the defendants were engaged in the construction of a story and a half frame dwelling house located on Ontario Street near the intersection of said street with 173rd Street in the City of Hammond. Said dwelling house was being erected on the east side of Ontario Street and was the second dwelling house located on the east side of Ontario Street, north of 173rd Street. On June 10th, 1946 said dwelling house was in a partial stage of completion in that the foundation has been completed, the side walls erected and the roof placed upon the building. The doors and windows had not yet been installed. No flooring had been placed upon the joists or rafters constructed at or about the so-called street level, nor had any flooring been placed upon the rafters and joists which constituted the supporing structure or the so-called upstairs or second floor of the frame building. On the north side of the building and approximately at street leval there was an opening in the structure approximately 36"' wide and 90"' in height, which opening was apparently constructed for the purpose of installing a door or entry way to the structure. On June 10th, 1946 no barricades or other obstructions were placed in the opening for the purpose of prohibiting the entry into the structure by children or other persons in the immediate locality. On the inside of the structure and within a few feet of the opening herein mentioned the defendants or either of them acting through their agents and or employees had caused to be placed a wooden stepladder, the lower portions of which rested on the joists or rafters at ground level and the upper extremities rested upon or reached the joists or rafters which were erected or constructed for the flooring of the so-called second floor.
'(8) The sole and proximate cause of the death of plaintiff's decedent was the negligence of the defendants and or each of them acting through their agents and employees, in the following particulars:
'(a) In failing to use reasonable care in barricading the entrance of the semi-completed dwelling house as herein described, when they knew, or in the exercise of reasonable care should have known, that children of immature years and more particularly the children of plaintiff's decedent were attacted to the semi-completed dwelling house for the purpose of play and sport, and were at the time and place of injury to plaintiff's decedent accustomed to using the semi-completed dwelling house as a place of sport and play.
If appellant is to recover under the allegations of his complaint, it must be done under the 'rescue doctrine.' This rule is clearly stated in 65 C.J.S., Negligence, § 63, p. 554:
'One who has, through his negligence, endangered the safety of another may be held liable for injuries sustained by a third person in attempting to save such other from injury.'
It has been applied in the jurisdictions which have adopted it only where the situation which invites rescue is created by the tortious act of the defendant or by one for whom he is responsible. 65 C.J.S., Negligence, § 124, p. 738.
The sole act of negligence here charged is: The failure of appellees under the circumstances as set out in the amended complaint to 'barricade the entrance to the semi-completed dwelling house' described in said complaint.
Actionable negligence consists of (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant. Harris v. Indiana General Service Co., 1934, 206 Ind. 351, 456, 189 N.E. 410; Pontiac-Chicago M. E. Co. v. Cassons & Son, 1941, 109 Ind.App. 248, 254, 34 N.E.2d 171.
The absence of any one of these elements renders a complaint bad for insufficient facts. Elder, Receiver v. Rutledge, Adm'x 1940, 217 Ind. 459, 464, 27 N.E.2d 358; Pontiac-Chicago M. E. Co. v. Cassons & Son, supra.
The second and third elements of actionable negligence are not in dispute, hence the sole question is: Did the appellees owe a legal duty to the children of the deceased, Shirley E. Neal, to put something across the doorway opening in the semi-completed building to keep them out--off the premises?
Appellant contends that greater care is required in dealing with children of tender years than with older persons who have reached the age of discretion and relies upon Penso, by next Friend v. McCormick, 1890, 125 Ind. 116, 25 N.E. 156, 9 L.R.A. 313, 21 Am.St.Rep. 211, and Drew v. Lett, 1932, 95 Ind.App. 89, 182 N.E. 547, for support.
In this state the only degree of care required is always the care which an ordinarily prudent person would exercise under the same or similar circumstances. Jones v. Cary, 1941, 219 Ind. 268, 279, 37 N.E.2d 944; Fields v. Hahn, 1945, 115 Ind.App. 365, 375, 57 N.E.2d 955.
The rule which this court recognizes as the law in Indiana is ably stated in Thompson v. Ashba, 1951, 122 Ind.App. 58, 61, 102 N.E.2d 519, 521, as follows:
'There are no degrees of negligence in the State of Indiana, neither are there degrees of care. The law upon this subject had been stated as follows:
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