Brush v. Public Service Co. of Indiana

• Decision Date: 23 May 1939
• Docket Number: 16105.
• Parties: BRUSH et al. v. PUBLIC SERVICE CO. OF INDIANA.
• Court: Indiana Appellate Court

21 N.E.2d 83

106 Ind.App. 554

BRUSH et al. v. PUBLIC SERVICE CO. OF INDIANA.

No. 16105.

Appellate Court of Indiana, in Banc.

May 23, 1939

Craig & Craig, of Brazil, and J. M. Johns, of Rockville, for appellant.

Aikman Miller & Causey, of Terre Haute, Evans & Hebel, of Indianapolis, and McFaddin & McFaddin, of Rockville, for appellee.

LAYMON Judge.

Appellant by his next friend, sought by this action to recover damages for injuries which he sustained as a result of coming in contact with a transmission wire and receiving a charge of electricity while upon the transformer platform of appellee.

The complaint was in one paragraph and in substance alleged: That a transformer platform was constructed and maintained by appellee adjacent to the roof of a factory building in such close proximity that children could descend from the roof of the building by means of the platform; that the platform and building were situated adjacent to an open field or common which had for many years been used by the public for circuses and carnivals and was, on the day of appellant's injury and had been for many years prior thereto, used as a playground by the children of the community--of which fact appellee knew; that appellee maintained a power house located approximately two blocks from the factory building and that the view from the power house to the factory building and playground was clear and unobstructed; that on the day of appellant's injury, and for many years before, there was a mulberry tree at the south end of the factory building which children had been accustomed to use in their play as a means of ascending to the roof of the factory; that children, including appellant, had for many years, while engaged in play, used the premises and buildings in such manner; that appellee, in the exercise of ordinary care, should have known and reasonably anticipated that children in their play, would climb to the roof of the factory building and on to the transformer platform upon which appellee maintained its transformers, wires, and appliances for the purpose of transmitting its electricity to the factory building; that on October 6, 1934, appellant, while engaged in play with other children, climbed upon the roof of the building by means of the mulberry tree and proceeded across the roof and on to the transformer platform where he received a heavy voltage of electricity, causing the injuries complained of; that appellee negligently and carelessly constructed and maintained the platform involved and negligently and carelessly maintained the transformers and wires thereon; and that appellee negligently and carelessly failed to guard and insulate the wires and transformers so as to prevent children who had occasion to be upon the platform from coming in contact with them.

To this complaint appellee filed a general denial. On the issues thus formed the cause was submitted to a jury, resulting in a verdict for appellee upon which judgment was rendered accordingly. In due time appellant filed his motion for a new trial, which was overruled, and this appeal followed. The error assigned is the action of the court in overruling appellant's motion for a new trial. The only grounds or reasons in the motion which appellant discusses in his brief relate to the giving of each of certain instructions tendered by appellee.

It appears that appellant, on October 6, 1934, sustained injuries by receiving a heavy voltage of electrical current while upon the transformer platform constructed and maintained by appellee for the purpose of supporting its transformers, wires, and electrical appliances used in the furnishing of its electricity; that for several years prior thereto there had been in the northwest part of the city of Brazil, Indiana, adjacent to a public highway, an open field or common used by children, youths, and adults as a playground, and at times for circuses, carnivals, and other public gatherings. Adjoining this open field was a factory building extending 300 feet north and south, 300 feet east and west, and approximately 14 feet in height. The roof of this building was comparatively flat. On the day that appellant received his injuries, and for many years before, there were no fences or barriers to prevent persons using the open field or common from entering the premises upon which the factory building and appellee's transformer platform were located. Appellee was, at the time of the accident and for several years prior thereto, engaged in furnishing electricity to the factory for power and light. In furnishing this electricity, appellee had erected, constructed, and maintained a platform adjacent to the factory building. Four large, upright poles of the size and type commonly used for maintaining transmission lines were placed in a rectangular position with a series of crossarms attached at a distance of approximately 14 feet from the ground--thus forming the platform. There were no guards or warning signs near this platform. Appellee maintained a substation about two blocks south of the factory building, and the view from this station to the factory building and surrounding open territory was unobstructed. Near the south end of the factory building was a mulberry tree which boys at times had climbed to reach the roof of the building. On the day of the accident appellant was playing on the common with two boys younger than he, and, in the course of their game, appellant, to avoid being caught, ascended to the roof of the factory building, proceeded across the roof, and stepped over to the transformer platform belonging to appellee. While upon the platform to evade his pursuers in play he received a charge of electricity, thereby sustaining injuries. Appellant's age on October 6, 1934, was 14 years, 3 months, and 21 days.

The jury returned with their general verdict answers to interrogatories by which they found that the appellee did not invite appellant to go upon the platform; that the roof of the factory building was of such nature that it would likely be damaged by boys playing thereon; that the occupant of the factory building, prior to the date of the accident, personally told boys to stay off of the roof and called city police for the purpose of keeping them off; that appellant was upon the roof of the building without the consent of its occupant; that the occupant of the building objected to boys climbing upon and using the roof of such building; and that appellant was not upon the roof of the factory building for the benefit or convenience of the owner or occupant of the building or for the benefit or convenience of appellee.

Complaint is made of appellee's tendered instruction No. 9 which informed the jury of their province in determining the credibility of the witnesses. Appellant insists that the instruction is erroneous because it told the jury that in weighing the testimony of a witness his business might be taken into consideration, thereby in effect stating that the testimony of one class of witnesses was to be given greater weight than that of another. The instruction informed the jury that it was their duty to determine the credibility of the witnesses and the weight to be given to their testimony, and that in weighing the testimony of the witnesses they could take into consideration the interest the witness had, if any, in the result of the action, his candor and fairness or want of fairness, his manner and bearing while testifying, his intelligence or want of intelligence, his bias or prejudice, if manifested, his character, business, habits and associations as disclosed by the evidence of the case, the reasonableness or unreasonableness of his testimony, his means and opportunity of knowing the facts which he testifies, etc. The instruction does not refer to...