Citizens' Tel. Co. v. Prickett

• Decision Date: 25 November 1919
• Docket Number: No. 23239.,23239.
• Citation: 125 N.E. 193,189 Ind. 141
• Parties: CITIZENS' TELEPHONE CO. et al. v. PRICKETT.
• Court: Indiana Supreme Court

189 Ind. 141

125 N.E. 193

CITIZENS' TELEPHONE CO. et al.

v.PRICKETT.

No. 23239.

Supreme Court of Indiana.

Nov. 25, 1919.

Appeal from Circuit Court, Howard County; Lloyd McClure, Special Judge.

Action by Orel S. Prickett against the Citizens' Telephone Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.James C. Blacklidge, Conrad Wolf, Earl B. Barnes, John R. McIntosh, Bell, Kirkpatrick, Purdum & Voorhis, and John B. Joyce, all of Kokomo, and W. A. Ketcham, of Indianapolis, for appellants.

Broo & Strode and Barnabas C. Moon, all of Kokomo, and McConnell, Jenkines, Jenkines & Stuart, of Logansport, for appellee.

MYERS, J.

Appellee brought this action against appellants to recover damages for personal injuries alleged to have been caused by the latter's negligence. Separate and several demurrers by appellants to the complaint for want of facts were overruled. A general denial by each of the appellants formed the issues submitted to a jury, and with its general verdict in favor of appellee and against all of the appellants for $12,000 it returned answers to 138 interrogatories, of which appellee submitted 71, Citizens' Telephone Company submitted 53, and Watson & Co. 14. Over the separate motions of appellants for judgment on the answers of the jury to the interrogatories, and their separate motion for a new trial, judgment was rendered on the general verdict. From this judgment appellants appeal, and each have assigned separate assignments of error. We will give attention to the errors, only, relied on for a reversal.

[1] 1. Does the complaint state facts sufficient to withstand each of the demurrers? The complaint, in substance, alleged that appellant Citizens' Telephone Company was the owner and engaged in operating a telephone plant in the city of Kokomo, Ind., with planted poles supporting wires and cables upon many streets of that city, including Monroe and McCann streets; that it employed more than five persons; that on November 18, 1914, appellee was employed by the telephone company, and, with other of its employés, and by its direction, he was engaged in dismantling one of the company's lines located on the east side of McCann street; that the particular duty of appellee on said date was to saw off and take down the cross-arms on the telephone poles after other employés had removed the wires therefrom; that for this purpose he climbed a pole located at the southeast corner of McCann and Monroe streets, and while near the top thereof, with his body strapped thereto, the pole suddenly and without warning fell and carried appellee with great violence to the surface of the street, whereby he was seriously injured; that on August 18, 1913, the firm of Watson & Co., entered into a contract with the city of Kokomo to improve and pave Monroe street, and shortly thereafter this firm made a contract with the firm of O'Conner & Son to surface Monroe street as required by the Watson contract with the city.

The charge of negligence is that the pole on which appellee was working when injured and in use by the company had become decayed and rotten, especially in the heart and center, and thereby rendered unfit for use and dangerous; that Watson & Co. in the execution of the improvement contract did negligently, at a point slightly below the surface of the street, cut fully one-half around the pole to a width and depth of three inches, thereby greatly weakening it to the knowledge of the company for more than 60 days before it fell; that afterwards O'Conner & Son further weakened said pole by negligently and wrongfully cutting into it at a point six inches below the original cut and by blocking out the wood between the cuts, all of which the telephone company knew for more than 30 days prior to appellee's injury; that thereafter, and more than 20 days before November 18, 1914, O'Conner & Son, with the knowledge of each codefendant, negligently moved a six-ton roller over and along Monroe street by means of a pulley attached to said pole, thereby cracking and further weakening it; that the telephone company, knowing of the dangerous condition of the pole prior to appellee's injury, continued its use and negligently failed to give appellee any warning of its dangerous condition; that by reason of the rotten condition of the pole and the weakening thereof by the acts of Watson & Co. and O'Conner & Son the pole from the weight of plaintiff's body thereon broke at or just beneath the surface of the ground; that by earth piled around the base of the pole its unsafe condition was concealed, and which condition was unknown to appellee.

It is insisted that the complaint fails to show any knowledge to appellants with reference to the condition of the pole which was not open and obvious, and not an incident to appellee's employment or defect which he could not have ascertained by the exercise of ordinary care.

By these objections appellants are seeking to have the doctrine of assumption of risk and contributory negligence applied to the pleaded facts. Neither of the demurrers question the complaint on the ground of assumption of risk, and the facts exhibited are not such as to compel the conclusion that appellee failed to exercise due care for his protection. The complaint was sufficient to require an answer from all of the defendants. Indiana Bridge Co. v. Shepp, 182 Ind. 610, 108 N. E. 107;Greenwaldt v. Lake Shore, etc., R. Co., 165 Ind. 219, 74 N. E. 1081. This question and the question of intervening human agency will arise under the next assignment where it will be further considered.

II. Each of the appellants moved for judgment in their favor on the answers of the jury to the interrogatories notwithstanding the general verdict.

[2] At this point, although among the causes for a new trial we deem it proper to say that many interrogatories submitted to the jury, however answered, were not relative to a material issue, in the sense that they called for particular facts which would be inconsistent with the general verdict, or valuable as a test to the correctness of the general verdict, and for these reasons such interrogatories should not have gone to the jury. City of Indianapolis v. Lawyer, 38 Ind. 348, 371;Ramseyer v. Dennis, 119 N. E. 716;Cleveland, etc., R. Co. v. True, 53 Ind. App. 156, 100 N. E. 22;Ft. Wayne Cooperage Co. v. Page, 170 Ind. 585, 84 N. E. 145, 23 L. R. A. (N. S.) 946; 2 Thompson on Trials, § 2682.

[3][4] The submission of interrogatories to the jury is under the supervision of the trial court, and it is only when an abuse of discretion is shown will this court interfere with that court's action. It is insisted that a number of the interrogatories submitted by appellee had reference only to matters affecting damages, and, while they did not call for answers inconsistent with the general verdict, yet they were exceedingly harmful because effective as an argument to increase damages. After a careful consideration of this question, we have reached the conclusion that these particular interrogatories are not as vicious as appellants would have us regard them; yet it must be admitted that they are subject to criticism, for they bear some evidence of a motive which should be curbed. For the purpose of determining their effect on the jury on the question of damages, we may look to the entire case as presented by the record. This we have done, with the result that in our opinion no harm in this case resulted from their submission.

[6] Looking to the interrogatories and answers thereto for the purpose of determining whether or not they are in irreconcilable conflict with the general verdict, we are confined to the complaint, answers, general verdict, and the answers of the jury to the interrogatories. Jeffersonville Mfg. Co. v. Holden, 180 Ind. 301, 102 N. E. 21;American Car Co. v. Adams, 178 Ind. 607, 99 N. E. 993.

[6] The general verdict is presumed to reflect the rights of the parties upon the substantial merits of the matters in controversy, and it must stand, unless with the aid of all reasonable presumptions within the issues, in its favor, it cannot be reconciled with the answers to the interrogatories unsupported by any inferences. Cleveland, etc., R. Co. v. Blind, 186 Ind. 628, 117 N. E. 641;Lake Erie, etc., R. Co. v. Charman, 161 Ind. 95, 102, 67 N. E. 923.

[7] In this connection our attention is called especially to the answers to interrogatories Nos. 11, 12, 24, 30, 47, and 48 submitted by the telephone company for the purpose of sustaining the contention that appellee was guilty of contributory negligence in climbing the pole without first examining it just beneath the suface of the ground. These answers show: (11) That appellee for many months was in the employ of the telephone company to construct, repair, dismantle, remove, and work on telephone lines and poles; (12) that appellee knew that the telephone poles were liable to decay at and immediately below the ground; (24) that the pole was cut to the decayed part; (47 and 48) when appellee sawed off the cross-arms, they fell astride of the guy wire, and the pole sprung to the east. Interrogatory 30 calls for a conclusion and cannot be considered for any purpose. Marietta Glass Mfg. Co. v. Pruitt, 180 Ind. 434, 439, 102 N. E. 369;Terre Haute, etc., Traction Co. v. Hunter, 62 Ind. App. 399, 417, 111 N. E. 344. Other answers show that appellee was an experienced lineman; that the diameter of the pole where it broke was 14 inches and was decayed at the heart, and between May 4 and November 18, 1914, had been cut to a depth of 2 or 3 inches and to the decayed portion; that in July or August, 1914, a chain was attached to the pole, and by means of a pulley a heavy mixer was moved, and in doing so the pole was cracked; that the cut in the pole and its decayed condition at that point was concealed by dirt piled around the pole; that appellee before he climbed the pole did not know of its rotten condition or...