Aurentz v. Nierman

• Citation: 131 N.E. 832,76 Ind.App. 669
• Decision Date: 30 June 1921
• Docket Number: 10,881
• Parties: AURENTZ ET AL. v. NIERMAN, ADMINISTRATOR
• Court: Indiana Appellate Court

131 N.E. 832

76 Ind.App. 669

AURENTZ ET AL. v. NIERMAN, ADMINISTRATOR

No. 10,881

Court of Appeals of Indiana

June 30, 1921

Rehearing denied November 18, 1921.

From Allen Superior Court; William N. Ballou, Judge.

Action by August C. Nierman, administrator of the estate of Lloyd Norton, deceased, against Augustus C. Aurentz and another. From a judgment for plaintiff, the defendants appeal.

Affirmed.

Leonard Rose & Zollars, Walter Old, Albert E. Thomas and Creighton H Williams, for appellants.

Ryan, Ryan & Aldrich, for appellee.

OPINION

NICHOLS, P. J.

Action by appellee for damages for the death of Lloyd Norton alleged to have been caused by the negligence of appellant Aurentz in maintaining in a defective condition electric wires in his business house in the city of Ft. Wayne, and in supplying electricity for the lighting thereof, by appellant city of Ft. Wayne by reason of which concurrent negligence said Norton was electrocuted.

By their respective motions for a new trial appellants present errors relied upon for reversal which are considered.

Appellants in their defense emphasize the fact that the contract for the original electric wiring of appellant Aurentz's building, which was used for a confectionery store, in the city of Ft. Wayne, was let by appellant Aurentz to one Pauley, who was and had been in the business of wiring buildings for light, power and other purposes for fifteen or twenty years, and that he was generally considered one of the most competent and best in the business. It is to be observed, however, that the complaint does not proceed upon the theory that the original installation of the system of wiring was defective, but that the same had been installed for a number of years and had become defective and dangerous, and that both appellants had knowledge of the dangerous and defective condition, and that notwithstanding such knowledge they did nothing to correct the defect and to render the premises safe until after the accident here involved. The transformer from which the current was taken was located on a pole near the building and was used also for the purpose of reducing the current furnished to a large number of other buildings covering a block or more in the heart of the city. The city brought the current into appellant Aurentz's building by three wires running from the transformer, the two outer wires, the positive ones, carrying about 220 volts, and the middle wire, the negative one, carrying 110 volts. The wires were carried from the fuse boxes through a conduit to a switch installed on the north side of a partition, and near the door entering the front room, which switch was used in manipulating the lights in the front room. About two inches below it was an outlet or socket for the purpose of operating the machines used by appellant Aurentz in his business, and below this and to the right was a switch by which the current was turned on and off this socket. All wires were intended to be insulated with rubber and the conduit was connected with the water pipe so that in case of trouble, or that they became charged, the current would be carried to the ground through the water pipe which was the usual and ordinary way of installing such work. The ice in the ice box located near caused it to sweat more or less and the floor became and was constantly damp and sometimes wet. On various occasions the fuses blew out, and thereupon appellant Aurentz notified the city lighting authorities, and they sent their trouble men and experts to his place of business to determine the trouble, and to restore the fuses. Upon investigation it was found that there was a ground some place in one of appellant Aurentz's lines but the exact place of the ground was not determined. It appears that the particular circuit leading to the socket here involved had been grounded for a number of years causing the lights in the place of business which were connected therewith to go out. A number of employes of the city, known as trouble men, one of whom was the assistant superintendent, had visited the building from time to time covering a period of five or six years prior to the accident, making their visits in response to calls by appellant Aurentz, but no examination was ever made by either appellant to locate the ground or remedy the defect until after the death of Norton. It was not the business of the employes of the city to remedy the defect but by inspection they discovered it and with knowledge thereof they notified appellant Aurentz, some of them, however, saying that it was not dangerous. But one of them at least informed him that things were rotten, and yet, not being an expert, he failed to call anyone to make an expert examination of his system of wiring, and to correct the defect. Such an examination was made after the accident which showed that the floor was grounded, and that there was a voltage according to one expert of 279 volts, while another test showed 230. While it appears that the city exercised no right of supervision over the wires in the building, it clearly appears that they had full knowledge of the defect, and that appellant Aurentz notified them from time to time of his fuses being out, and that they sent their trouble men to the store room. With full knowledge of the "rotten" condition of the wiring system in the building, they continued to feed their current into the same.

The deceased was employed by the Ft. Wayne Dairy Company, and on the morning of the accident, he and another employe of the dairy company arrived early, before it was yet light, at the rear of appellant Aurentz's place of business delivering their ice cream, and entered the building. It was a little difficult to see by reason of the darkness, and the deceased walked to the east door of the partition and switched on the lights manipulated by the switch located there. This apparently did not...