Christmas v. Christmas

• Decision Date: 23 January 1974
• Docket Number: No. 1--273A24,1--273A24
• Citation: 305 N.E.2d 893,159 Ind.App. 193
• Parties: Lofton CHRISTMAS, Plaintiff-Appellant, v. James CHRISTMAS, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 893

305 N.E.2d 893

159 Ind.App. 193

Lofton CHRISTMAS, Plaintiff-Appellant, v. James CHRISTMAS, Defendant-Appellee.

No. 1--273A24.

Court of Appeals of Indiana, First District.

Jan. 23, 1974.

Rehearing Denied Feb. 20, 1974.

William J. Marshall, Princeton, Richardson & Rusk Professional Corporation, Washington, for plaintiff-appellant.

Jan R. Van Winkle, Charles A. Thompson, Henderson, Daily, Foxworthy & Van Winkle, Indianapolis, Hayes & Dwyer, Washington, for defendant-appellee.

LOWDERMILK, Judge.

Plaintiff-appellant charges negligence on the part of defendant-appellee which resulted in injuries to the appellant from a fall which occurred on the snow covered side porch of appellee's residence in the night time.

Trial was had and at the close of plaintiff's evidence the defendant filed a motion for judgment on the evidence, which motion consisted of four specifications, namely: (1) No evidence was offered or received to prove a breach of duty owed to the plaintiff; (2) No evidence was offered or received to prove the defendant guilty of any negligence; (3) The evidence presented showed as a matter of law that the plaintiff was guilty of contributory negligence which was the cause of his injury, and (4) The evidence presented shows as a matter of law that the plaintiff incurred any and all risks and his claim is therefore barred.

The court sustained the motion and instructed the jury to return a verdict for the defendant, which was done. The court then entered a judgment for the defendant. Appellant timely filed his motion to correct errors which was overruled by the court.

Appellant had a hobby of coon hunting and on the night of December 28, 1969, he, along with one Bill Clark, decided to go coon hunting. There was several inches of snow on the ground when they left home approximately 7:30 in the evening. The two men drove southeast of Washington, Indiana, and hunted for about two hours. Thereafter they decided to go to the home of appellant's brother (appellee), which was ten to twelve miles away, to discuss a trade of dogs.

When appellant and Clark arrived at appellee's residence about 10:00 P.M., it was dark. Appellee's wife turned on a kitchen light but no outside light was turned on to illuminate the porch. The most convenient entrance to the home was through the side porch, as there was no sidewalk or porch to the front door. Appellant and Clark went into the house and discussed various matters, including the trading of dogs, with appellee. A trade was made and appellant then, at appellee's request, voluntarily proceeded outside to the rear of the house to get the dog for which he had traded and to return him into the house. When appellant stepped onto the porch on his way out, his foot slipped, he did the splits, and claimed injury to his back.

The evidence presented by the plaintiff-appellant is that there was two to four inches of snow on the ground while appellant and his friend, Clark, were coon hunting; that as they drove to appellee's home it was icy and sleeting and continued to do so to the time they stopped in appellee's driveway, turned the lights off on the truck and went into his home.

While the men were sitting in appellee's home appellee went to the window and then made the remark, 'It's asleeting out and raining. It's getting bad.'

Appellant and Clark were both dressed warm for their hunting trip and wore mine spot flashlights with a helmet and a battery so they could see.

The back porch to appellee's home was spongy and weak but had been covered with a plywood board, making it solid except that one's weight would depress the porch. The porch had an estimated ten to twelve inch rise from it to the kitchen floor.

Appellant had been into appellee's home at least twice a week on an average from 1967 until the night he injured his back and had always entered and left by way of the back porch and back door which he used when injured.

Appellant testified that on the night of the dog swap he did not remember seeing any snow on the porch when he went in but did see ice; he did not see any burlap bag or other cloth for wiping the feet on the porch when he went in and testified he did not see it when he went out to get the coon dog, but later turned on the electric light which he wore on his helmet to see and as he returned to the house he observed that he had stepped on the burlap bag as he went out of the house.

Among the errors charged to the court by appellant's motion to correct errors was specification 2(D), in that the evidence failed to show that the plaintiff incurred any and all risks to which he was subjected.

The doctrine of incurred risk must be distinguished from contributory negligence and the courts in this State have consistently held that the two doctrines must remain exclusive. This court said, in the case of Stallings et al. v. Dick (1965), 139 Ind.App. 118, 210 N.E.2d 82, as follows:

'The courts have long recognized the doctrine of incurred risk and have distinguished it from the separate defense of contributory negligence. . . . (Citations omitted.)'

See, also, Pierce v. Clemens (1943), 113 Ind.App. 65, 46 N.E.2d 836.

It must be remembered that incurred risk is differentiated from assumed risk only to the extent that an assumed risk lies where there is a contractual relationship. 21 I.L.E. Negligence, § 93, p. 353.

The court, in Stallings, supra, defined the doctrine of incurred risk as follows:

'The doctrine of incurred risk is based upon the proposition that one incurs all the ordinary and usual risks of an act upon which he voluntarily enters, so long as those risks are known and understood by him, or could be readily discernible by a reasonable and prudent man under like or similar circumstances. (Citations omitted.)'

This court discussed incurred risk in the case of Indiana, etc. Oil Co. v. O'Brien (1903), 160 Ind. 266, 65 N.E. 918, 66 N.E. 742, as follows:

'. . . it must appear that the injured person had knowledge of the danger in question and appreciated it, and voluntarily, or of his own choice, exposed himself to or encountered such danger, thereby incurring, or taking upon himself, the risk incident thereto. . . .'

It is our opinion that the evidence adduced at trial establishes as a matter of law that the plaintiff incurred the risk of his injuries. First, the evidence shows that appellant voluntarily entered into the course of action that resulted in his injury. The appellant went to the home of appellee on his own initiative, and entered said home on his own initiative. His exit from the kitchen to get the dog, while done at the request of appellee, was still a voluntary action on the part of appellant and was being done for his own gain.

Next, the risks involved in leaving the house and stepping onto the ice covered porch were known, or, in the exercise of reasonable care, should have been known, and understood by the appellant. Appellant testified that he had been visiting the home of appellee about twice a week for a period of at least three years. He further testified that the condition of the side porch had always...