375 N.E.2d 1138 (Ind.App. 1 Dist. 1978), 1-477A71, Clyde E. Williams & Associates, Inc. v. Boatman

• Docket Nº: 1-477A71.
• Citation: 375 N.E.2d 1138, 176 Ind.App. 430
• Party Name: CLYDE E. WILLIAMS AND ASSOCIATES, INC., Appellant (Defendant below), v. Ruby BOATMAN, Administratrix of the Estate of Ralph Boatman, Deceased, Appellee(Plaintiff below).
• Case Date: May 18, 1978
• Court: Court of Appeals of Indiana

Page 1138

375 N.E.2d 1138 (Ind.App. 1 Dist. 1978)

176 Ind.App. 430

CLYDE E. WILLIAMS AND ASSOCIATES, INC., Appellant (Defendant below),

v.

Ruby BOATMAN, Administratrix of the Estate of Ralph Boatman,

Deceased, Appellee(Plaintiff below).

No. 1-477A71.

Court of Appeals of Indiana,First District.

May 18, 1978

Page 1139

[176 Ind.App. 432] Eric A. Frey, of Rosenfeld, Wolfe, Frey & Lowery, Terre Haute, for appellant.

Buena Chaney, Mann, Mann, Chaney, Johnson, Hicks & Goodwin, Terre Haute, for appellee.

LYBROOK, Presiding Judge.

Clyde E. Williams and Associates, Inc., defendant-appellant, brings this appeal following the entry of judgment in favor of Ruby Boatman, Administratrix of the Estate of Ralph Boatman, Deceased, plaintiff-appellee. The trial to a jury had resulted in a verdict of $120,000 in favor of Boatman.

The facts most relevant to this appeal indicate that Williams is an engineering concern which was under contract with the Town of Rockville for the supervision of the installation of a sewer system in that town. The contract required Williams to prepare the specifications and design the sewer system, and further required Williams to inspect the construction to assure the town that the specifications were being followed. The actual construction was being performed by the Howard E. Schmidt Company, which had also entered into a contract with the Town of Rockville.

Ralph Boatman was an employee of Schmidt and was engaged in the laying of sewer pipe in the bottom of a ditch when the walls of that ditch collapsed. As a result of that collapse, Ralph Boatman was killed. Following the accident, suit was filed against Williams which resulted in the above mentioned verdict and judgment.

Williams presents the following issues for our review:

(1) Did the trial court commit reversible error when it overruled Williams' Motions for Directed Verdict, both at the end of the plaintiff's evidence and when renewed at the close of all the evidence? The Motions were based on the following theories:

(a) Williams owed no duty of care to Boatman.

(b) Boatman was contributorily negligent as a matter of law.

(c) Boatman incurred or assumed the risk of his injury as a matter of law.

(d) No act of negligence by Williams was the proximate cause of the injury.

[176 Ind.App. 433] (2) Were any of the eight contested instructions to the jury sufficient error to necessitate reversal?

Prior to any discussion of the merits of this appeal, we deem it necessary to briefly address a procedural issue which has arisen subsequent to trial. Williams timely filed its Motion to Correct Errors, praecipe, transcript and appellant's brief. Upon the completion of these filings, and during the time period allowed for an answer brief to be filed by the appellee, Boatman filed a Motion to Dismiss or Affirm the Judgment. In conjunction with that motion Boatman filed a Motion for Extension of Time in which to file her answer brief. She requested a...