Terre Haute, I.&E. Traction Co. v. Young

Decision Date03 April 1914
Docket NumberNo. 8206.,8206.
Citation56 Ind.App. 25,104 N.E. 780
CourtIndiana Appellate Court
PartiesTERRE HAUTE, I. & E. TRACTION CO. v. YOUNG.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Tippecanoe County; Richard P. Dehart, Judge.

Action by Rose Ella Young, as Administratrix of Nathaniel W. Young, deceased, against the Terre Haute, Indianapolis & Eastern Traction Company. Judgment for the plaintiff, and defendant appeals. Reversed, with directions to sustain the motion for new trial.Parks & Parks, of Mishawaka, and W. H. Latta, of Indianapolis, for appellant. Stuart, Hammond & Simms, of La Fayette, and George W. Galvin, for appellee.

CALDWELL, J.

On the 8th day of August, 1908, Nathaniel W. Young, appellee's decedent, as an employé of appellant, was engaged in painting an iron and steel railroad bridge, owned and used by appellant, as a part of its electric traction line, which bridge spanned Wild Cat creek at a point about one mile east of the town of Dayton, in Tippecanoe county. On Sunday morning, August 9th, the lifeless body of said decedent was found at the north side of said bridge, partially submerged in the water of said creek. In addition to the marks of several minor injuries, there was on the body evidence of a severe electric burn, extending from the top of the left shoulder several inches down the back to the lower margin of the shoulder blade, and the scalp on each side of the head had been broken and stripped down to near the ears. This action is prosecuted by appellee, as administratrix, to recover damages against appellant on account of said death, for the use and benefit of herself, as widow, and for the use and benefit of several minor children. A trial by jury resulted in a verdict and judgment in favor of appellee in the sum of $6,000.

The complaint is in two paragraphs, each of which was unsuccessfully challenged in the trial court by a demurrer. The rulings on said demurrers are properly presented in this court by assignment of errors. The sole objection to each paragraph is that it is asserted that there is no sufficient averment therein of nonassumption of risk by said decedent.

The facts alleged in the first paragraph are in part substantially as follows: That appellant was maintaining as a part of its equipment a trolley wire suspended over the center of the track, and about six inches below the underside of the top girders of said bridge, and also a high tension or feed wire, about two feet above said girders and near the north side of said bridge; that each of said wires was heavily charged with electricity, but that neither of them was insulated or covered, for the protection of those whose duty it was to work around them; that appellant knew that it was necessary to repair and paint said bridge from time to time, and that to that end it would be necessary for persons to work around and about said wires, but that it carelessly and negligently strung said wires in such a position as that it was not possible or practicable for such persons to work upon said bridge without great danger of coming in contact with said uninsulated and highly charged wires; that appellant “carelessly and negligently failed and omitted to protect or cover said wires with insulating material, so as to render them safe to persons lawfully working on said bridge, and carelessly and negligently constructed and permitted said wires to remain uninsulated and in dangerous condition”; that appellant knew that said wires were heavily charged with electricity, and that they were uninsulated and unprotected, and that there was great danger that said decedent, while prosecuting said work, would come in contact with them, and that from any such contact he would be seriously injured or killed, but that, notwithstanding such knowledge, it carelessly and negligently failed to insulate or cover said wires, or otherwise protect said decedent; that appellant “knew of the dangerous position and condition of said wires”; that said decedent was a painter by trade, and “had no knowledge of said dangerous position or condition of said wires.” Facts are alleged to the effect that said decedent, while painting said bridge, as such employé of appellant, came in contactwith one of said wires, and was thereby killed by a consequent electric shock.

The second paragraph of complaint repeats most of the averments of the first paragraph, and alleges in addition that appellant negligently suffered said wires to sag and sway, subject to the caprice of the elements. It alleges that by reason of the unprotected and uninsulated condition of said wires, there was danger of the electric fluid which they carried escaping therefrom, and into the body of any person who approached near said wires. Facts are fully averred respecting appellant's knowledge of the alleged dangerous position and condition of said wires, and that appellant knew that said decedent was painting said bridge, and that it would be necessary for him to approach near said wires, and that thereby he would be in danger of coming in contact with said fluid likely to be caused to escape from said wires by his near approach thereto, and that appellant knew all the dangers and perils likely to result from electricity escaping from said wires. On the subject of said decedent's non-assumption of risk, it is alleged, in substance, that said decedent was a painter by trade, and that he “was wholly unfamiliar with electricity and its mode of carriage and confinement, or the perils therefrom; that said decedent had no knowledge of said dangerous position and condition of said wires, or their uninsulated condition, or of their need of insulation, and knew nothing of the presence of said escaped fluid on such bridge, or of any peril to be apprehended therefrom.” It is alleged that appellant “well knew each and all of these things, or by the exercise of reasonable care could have known.” It is further alleged. that said decedent, while painting said bridge came in contact with electricity that escaped from one of said wires, and that as a result he was killed.

One distinction between the first and second paragraphs of complaint is that the former alleges that said decedent came in contact with one of said wires, and thereby received a charge of electricity, while the latter alleges that he merely approached near to said wires, and thereby came in contact with electricity escaping from said wire. It is appellee's construction of said second paragraph of complaint that decedent's near approach to one of said wires caused the electricity to arc or leap therefrom through the intervening space to his body, and that thereby said decedent received the charge that killed him.

[1] As we have said, appellant does not claim that either of said paragraphs is defective, except as to its allegations on the subject of the nonassumption of risk on the part of the decedent. To that end, as applied to this case, in order that either paragraph of complaint may be sufficient as against demurrer, it is necessary that such paragraph contain averments to the effect that said decedent had no knowledge of the defect or dangers complained of. Indianapolis, etc., Co. v. Mathews, 177 Ind. 88, 89, 97 N. E. 320;Cleveland, etc., Co. v. Morrey, 172 Ind. 513, 520, 88 N. E. 932;Cleveland, etc., Co. v. Parker, 154 Ind. 153, 56 N. E. 86;Lake Shore, etc., Co. v. Stupak, 108 Ind. 1, 8 N. E. 630.

[2] In this case, decedent's knowledge, whether actual or constructive, of the defect and consequent danger complained of would defeat the right to recover, but as a matter of pleading, it is sufficient to allege that said decedent did not know of such defect and danger. Such allegation repels, not only actual, but also implied or constructive, knowledge. Consolidated Stone Co. v. Summit, 152 Ind. 297, 300, 53 N. E. 235;Johnson v. Gebhauer, 159 Ind. 271, 285, 64 N. E. 855.

[3] To the extent that allegations of the master's knowledge and of the servant's want of knowledge are essential to the sufficiency of the complaint, the latter must be as broad and comprehensive as the former. Cleveland, etc., Co. v. Morrey, 172 Ind. 513, 518, 88 N. E. 932;Peerless Co. v. Wray, 143 Ind. 574, 42 N. E. 927;Indianapolis, etc., Co. v. Mathews, 177 Ind. 88, 99, 97 N. E. 320.

[4] Measured by the foregoing principles, while each paragraph of the complaint might be improved, if the facts warrant it, by more specific and definite allegations on the subject of said decedent's knowledge of the condition of said wires and the danger and perils likely to be incurred from coming in contact with or in close proximity to them, still in our judgment, each paragraph is sufficient. It would seem that the allegation in each paragraph that said decedent did not know of the dangerous position of said wires scarcely adds strength to the complaint. From each paragraph it sufficiently appears that said wires were in plain view and uncovered. As to the position of the wires said decedent's opportunity for knowledge was practically equal to that of appellant. In such case the specific facts pleaded control the general averment of want of knowledge. Cleveland, etc., Co. v. Morrey, supra; Louisville, etc., Co. v. Kemper, 147 Ind. 561, 565, 47 N. E. 214;Corning Steel Co. v. Pohlplatz, 29 Ind. App. 250, 254, 64 N. E. 476.

[5] The averment that said decedent did not know of the dangerous condition of said wires is more comprehensive. Said averment is sufficient to include the fact of a want of knowlege that said wires were uninsulated and heavily charged with electricity, and that a person coming in contact with them would receive a charge of electricity sufficient to injure him seriously or kill him. We, therefore, hold said paragraph sufficient.

[6] The second paragraph contains additional matter above outlined on the subject of nonassumption of risk, and in our judgment it is plainly sufficient. Moreover, the answers of the jury to the interrogatories, as hereinafter...

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4 cases
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    • United States
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    • February 8, 1924
    ...all the facts on which such liability depends. Chicago, etc., R. Co. v. Glover, 154 Ind. 584, 57 N. E. 244;Terre Haute, etc., Co. v. Young, 56 Ind. App. 25, 104 N. E. 780. The other questions argued by counsel may not arise upon a retrial of the case. The judgment is reversed, with directio......
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    • United States
    • Indiana Appellate Court
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    ...104 N.E. 780 56 Ind.App. 25 TERRE HAUTE, INDIANAPOLIS AND EASTERN TRACTION COMPANY v. YOUNG, ADMINISTRATRIX No. 8,206Court of ... ...

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