Adams v. Schneider

• Decision Date: 28 October 1919
• Docket Number: No. 9956.,9956.
• Citation: 71 Ind.App. 249,124 N.E. 718
• Parties: ADAMS v. SCHNEIDER et al.
• Court: Indiana Appellate Court

71 Ind.App. 249

124 N.E. 718

ADAMS

v.SCHNEIDER et al.

No. 9956.

Appellate Court of Indiana, Division No. 2.

Oct. 28, 1919.

Appeal from Circuit Court, Warrick County; Ralph Roberts, Judge.

Action by Margaret Adams against Jacob U. Schneider and others. From a judgment on a directed verdict for defendants, plaintiff appeals. Reversed, with instructions.

John H. Luckett, of English, Charles F. Werner, of Evansville, Union W. Youngblood, of Booneville, and Eugene H. Iglehart, of Indianapolis, for appellant.

J. R. Brill, F. H. Hatfield, and J. W. Brady, all of Evansville, for appellees.

NICHOLS, P.J.

This action was in tort for damages resulting from personal injuries sustained by the appellant, caused by the collapse of a tier of seats, one of which she occupied at appellees' invitation while patronizing a public exhibition for hire, given by appellees, and for admission to which the appellant had paid the charge required. It is averred in the complaint in substance that:

On May 22, 1914, the appellees gave, maintained, and conducted for profit, at the Baseball Park in the city of Evansville, a public exhibition and place of amusement and entertainment known as a “Field Day Exhibition.” On and prior to said date the appellees invited the public to attend the same, and charged 25 cents admission, with an additional charge for certain seats. Appellant accepted such invitation, purchased tickets, on the surrender whereof she was duly admitted and invited to occupy, and did occupy, one of the tiers of temporary seats erected by appellees. While she was so seated, the seats gave way and fell to the ground, whereby the appellant was thrown violently to the ground amid a struggling mass of people, and severely injured. That at all times referred to, the management, maintenance, and supervision of said premises and seats, as between appellant and appellees, were in the exclusive power and control of the appellees. At the time of such injury and at the time the public were so invited to attend, said seats were not in a safe condition for such purpose, and were not strong enough to hold the people intended and suffered by appellees to occupy them. Appellees negligently invited and permitted a large crowd of people, including appellant, to occupy such seats, as aforesaid, while the same were in such weak and unsafe condition. As a result of such negligence said seats gave way as aforesaid, and thereby appellant was injured, to her damage in the sum of $10,000, for which amount she prays judgment.

There was no demurrer to the complaint, but each appellee separately answered with a general denial. On change of venue, the case was tried in the Warrick circuit court. On trial, the appellant dismissed her action as to the defendant Tomlin. Appellant, having introduced her evidence and rested, the appellees each moved the court to direct a verdict in his favor, each of which motions was by the court sustained, to which ruling the appellant excepted, and, the jury having returned a verdict according to such instructions, for appellees, the court rendered judgment thereon, that the appellant take nothing by her suit, and that the appellees should recover from the appellant their costs, to which judgment the appellant duly excepted. Thereafter the appellant filed her motion for a new trial, in which she specified as error the court's ruling in sustaining the motion of each of the appellees to instruct the jury to return a verdict for such appellees, and each of them, in so instructing the jury to return a verdict for each of the appellees, that the verdict is not sustained by sufficient evidence, that the verdict is contrary to law, and that the court erred in rendering judgment on the verdict of the jury against the appellant and in favor of each of the appellees. This motion was overruled by the court, to which ruling the appellant excepted, and now on appeal assigns as error the ruling of the court in overruling her motion for a new trial. It appears by the evidence in this case that the appellees Rosencranz, Strouse, and Schneider were members of the school board of the city of Evansville. The defendant Tomlin was superintendent of such schools, and the appellee Fisher was clerk of the school board. As such clerk it was part of his duty to make out pay rolls, to attend to paying bills for the board, to look after the work generally, and to transact minor matters of business for the board, in which matters he had discretion. It had been the custom of the school authorities of the city of Evansville to conduct what is commonly known as “field day exercises,” such exercises having been conducted in substantially the same way for the past 14 or 15 years. In the year 1914, it having been determined to conduct such field day exercises as theretofore, the said appellees members of the school board directed the said appellee Fisher, clerk, to make arrangements therefor, a part of which consisted in constructing the seats, the falling of which resulted in the injury that is involved in this action. This authority to make arrangements for said field day exercises, and further to conduct the management of the Ball Park on field day, was given to appellee Fisher at a meeting of such school board. The said appellees members of the school board directed the said Fisher to have the said seats constructed, and thereupon he hired one Poelhuis to construct them; he having been the person who had done so for the two previous years. Said Poelhuis was instructed to put up the same kind of seats that he had built theretofore, and was given no plans. He furnished the lumber, and took it away and owned it afterward. Said appellee Fisher had nothing further to do with the construction of said seats, and did not see them until about 2 o'clock on the day of the accident, which was a short time before it occurred. He had then gone to the grounds for the purpose of getting everything in running order, being in charge of the management for the day, and with furnishing the facilities and getting everything to running smoothly. He was assisted in such duties by the janitors, teachers, and policemen, whom he instructed in a general way to perform their duties as they had on previous occasions. Appellees Schneider, Strouse, and Rosencranz had nothing to do with the entertainment further than hereinbefore set out, nor the selection of the person to build the seats, except to authorize appellee Fisher to have the work done as it had been done before. The said Poelhuis was furnished no plans or specifications, and was left to his own independent judgment in all matters pertaining to the selection of materials, and the manner and plan of erecting said seats. There was no inspection of them until after the accident, when it was discovered that only six and eight penny nails had been used, the seat boards only being nailed occasionally, “here and there.” There was no sufficient bracing. Other than the appellant's injuries and the extent of the same, this is the substance of all the evidence given in this case, and at the conclusion of which, upon motion of each of the appellees, the jury was instructed to return a verdict against the appellant and in favor of each of the appellees. It will be observed that this action is not against the school board as such, or the city schools, but that it is an action against the respective members of the school board and the clerk thereof individually.

[1][2][3] It is made the duty of school trustees of cities to take charge of the educational affairs of their respective cities, and to provide a suitable...