Bass v. Reitdorf

• Decision Date: 05 October 1900
• Citation: 25 Ind.App. 650,58 N.E. 95
• Parties: BASS v. REITDORF.
• Court: Indiana Appellate Court

25 Ind.App. 650

58 N.E. 95

BASS

v.REITDORF.¹

Appellate Court of Indiana.

Oct. 5, 1900.

Appeal from circuit court, Dekalb county; D. R. Best, Special Judge.

Action by Wilhelmina Reitdorf against John H. Bass, receiver of the Ft. Wayne Consolidated Railway Company, for the death of plaintiff's son. From a verdict in favor of plaintiff, defendant appeals. Reversed.

Barrett & Morris, for appellant. L. M. Ninde & Sons and F. S. Roby, for appellee.

ROBINSON, C. J.

Suit for damages for the negligent killing of appellee's son. Demurrer to complaint overruled. Answer of general denial. Trial by jury. Verdict in appellee's favor, and answers to special interrogatories. Motion by appellant for judgment on the answers overruled. Judgment. The errors assigned question the sufficiency of the complaint, and the legality of denying appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict.

The complaint avers that the Ft. Wayne Consolidated Railway Company owned and managed divers lines of road, and also a large park on the St. Joseph river, which park was constructed and managed by the company for profit, and to which it operated a branch of its road; that a receiver was appointed by the court, and took possession of the company's property, including the park and branch line leading thereto, and, under order of the court, proceeded to operate the road and carry on and conduct the business of the park as a place of common resort for pleasure for the people; that located in the park, and as part of the river, was a body of water, held out to the public as a suitable and safe place for bathing, swimming, and diving; that appellants had failed and neglected to remove from this body of water certain pieces of timber, stumps, and logs, but left the same concealed therein under the surface of the water, and which were out of sight and unknown to appellee's son; that on a day named appellee's son went upon the planks and appliances along the water prepared and maintained by appellants for the accommodation of persons engaged in bathing, swimming, and diving, being ignorant of the dangerous logs, stumps, etc., and, as was the custom in such exercises, in the usual and ordinary way, leaped head foremost into the water, striking such logs, stumps, etc., resulting in his death. The objections to the complaint are involved in the denial of the motion for judgment on the answers to interrogatories, and all may be considered together.

It appears from the special answers that in April, 1897, one Phillips and appellant, receiver, entered into an agreement whereby Phillips erected and conducted at his own expense a bath house and float pool in the park for the purpose of giving swimming lessons; the float and pool to be constructed and maintained according to plans submitted by appellant. A stipulated scale of prices to be charged was set out. Appellant furnished a ticket seller at its own expense, and paid over to Phillips weekly 85 per cent. of the proceeds, and retained the other 15 per cent. It is argued that, as the special answers show the pool was in the exclusive possession of Phillips, there can be no liability on the part of appellant. Upon this question the answers conflict; one saying that Phillips had exclusive control, and another that the pool was maintained by appellant in connection with Phillips. The answers very clearly show that there was a contract relation between appellant and Phillips, and that each was to derive his reward...