City of Decatur v. Eady
| Decision Date | 30 March 1917 |
| Docket Number | 22,834 |
| Citation | 115 N.E. 577,186 Ind. 205 |
| Parties | City of Decatur v. Eady, Executrix |
| Court | Indiana Supreme Court |
From Allen Circuit Court; E. O'Rourke, Judge.
Action by Rebecca Eady, executrix of the estate of Philip J. Eady deceased, against the City of Decatur. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Louis C. DeVoss, David E. Smith and Colerick & Hogan, for appellant.
Clark J. Lutz, for appellee.
Appellee, as administratrix of her deceased husband, recovered judgment against appellant for damages occasioned by his death, which resulted, as alleged, from negligence on the part of the appellant, which is a municipal corporation owning and operating an electric light plant for the purpose of lighting its streets and furnishing electricity to private consumers for light and power. At the time appellee's decedent met his death he was employed as a lineman by appellant, and was engaged in attaching a transformer by means of a hook to the second cross-arm on one of appellant's poles. While so engaged he came in contact with a high-voltage wire located on that cross-arm, and received therefrom a current of electricity, which produced death.
The only error assigned is the action of the trial court in overruling appellant's motion for a new trial. The specific causes relied on are: That the verdict was not sustained by the evidence; and that the court committed error by giving certain instructions.
A number of the instructions to which appellant objects are directory in their character. They direct a verdict in favor of the plaintiff, in case the jury should find from the evidence certain facts enumerated therein. It has been repeatedly held that, where a court by an instruction undertakes to enumerate all of the material facts essential to a recovery, and by such instruction directs the jury to return a verdict for the plaintiff if such facts are found to be true, the omission of a material fact essential to a recovery renders the instruction erroneous, and that such error is not cured by another instruction which properly enumerates all of the material facts necessary to recovery. Chicago, etc., R. Co. v. Glover, (1899), 154 Ind. 584, 57 N.E. 244, and cases cited; American, etc., Tin Plate Co. v. Bucy (1908), 43 Ind.App. 501, 87 N.E. 1051.
At common law a servant who sought to recover damages for personal injuries resulting to him through the negligence of his master was required to prove not only that the master had been guilty of negligence which proximately caused the injury, but also that the servant had neither actual nor constructive notice of the danger created by the master's negligence. If the servant knew of the dangerous condition, or could have known of it by the exercise of reasonable care, he was held to have assumed the risk incident to such danger.
Instruction No. 1, given by the court at the request of appellee, directs the jury to return a verdict for the plaintiff if certain facts enumerated therein are found to be true. By this instruction the jury was not required to find as an essential fact on which to base its verdict that appellee's decedent did not know of the dangerous condition of the wire, and that he could not have known of it by the exercise of ordinary care. Under this instruction the jury was authorized to find a verdict for the plaintiff, even though the deceased knew of the particular danger and voluntarily encountered it. If appellee's action is based on the common law, this instruction is clearly erroneous.
The common-law rule of the assumption of risk has been modified by statute in this state. Acts 1911 p. 145, § 8020a et seq. Burns 1914. Under certain conditions set out in the statute, the employe is permitted to recover even though he may have known the danger which caused his injury, or could have learned of it by the exercise of due care. This statute abrogates the common law as to the assumption of risk under the conditions specified in the statute. Vandalia R. Co. v. Stillwell (1913), 181 Ind. 267, 104 N.E. 289, Ann. Cas. 1916 D 258. On behalf of appellee it is claimed that the complaint in this case is so drawn as to bring it within the terms of this statute; that the doctrine of assumption of risk does not apply for that reason, and that therefore the instruction under consideration was not erroneous even though it did not require the jury to find the facts showing that appellee's decedent did not assume the risk of the danger which caused his death. It is not entirely clear from the record whether appellee based her right to recover on the common law or on the statute to which we have referred. If the instruction under consideration was intended to state the essential facts necessary to a recovery at common law, it was erroneous for the reasons heretofore stated; but, if it was intended to inform the jury what facts were essentially necessary to a recovery under the statute, it is erroneous for another reason. An instruction which directs a verdict for the plaintiff under this statute upon the hypothesis that the jury find certain facts from the evidence, must require the jury to find, as a prerequisite to such verdict, all the facts, as stated in the complaint, which bring the cause within the terms of such statute. Because the instruction under consideration fails in this particular, it cannot be held proper under the statute.
The objection pointed out to this instruction, and to others showing like defects, would require a reversal of the judgment were it not disclosed by the record that the particular error was not prejudicial to appellant. Section 2 of the act hereinbefore cited provided that an employe shall not be held to have assumed the risk of the employment where the injury complained of resulted from his obedience to any order or direction of the employer, or to any employe to whose orders or directions he was under obligations to conform or obey. The evidence shows without dispute that appellant was engaged in operating an electrical plant by which it was furnishing electricity to the city and to divers persons for light and power, and that it employed in such business more than five persons. It also shows without dispute that the decedent at the time he met his death was acting under the directions of appellant's superintendent, and that he went into the place of danger in obedience to orders given by him. Under such a state of the evidence decedent could not be held to have assumed the risk of the danger, for which reason an erroneous statement of the law contained in an instruction as to the assumption of risk could not have harmed appellant.
Appellant correctly asserts that other instructions bearing upon the negligence of appellant are erroneous for the reason that they impose a higher degree of care than the law exacts. Under the uniform decisions of this state negligence consists in the failure to use due care, or ordinary care, which is measured by the care a person of reasonable prudence would ordinarily exercise under like conditions and circumstances. The care to be used must be commensurate with the danger; but, no matter how perilous an undertaking may be, the law exacts nothing more than ordinary care in view of the danger. Some of the instructions given imposed upon appellant a higher standard of care than the law exacts.
By the fourth instruction the jury was told that it was appellant's duty to keep the wires perfectly insulated, and that it must use the utmost care to maintain them in such condition. It was the duty of appellant to exercise reasonable care to keep its wires safely insulated; and, for the purpose of determining what acts and precautions reasonable care required, the jury had a right to consider the high voltage carried by the wires and the danger incident to faulty insulation. From the language used by the court in this instruction the jury had a right to understand, and probably did understand, that something more than ordinary care was required. The same error was repeated and emphasized in the eighth instruction, in which the following language is used:
In addition to the error pointed out in the fourth instruction this instruction authorized a verdict for the plaintiff in case the jury found that one of the heavily charged wires of appellant was imperfectly insulated, and that the death of Philip J. Eady was caused by his coming in contact with such imperfectly insulated wire without fault on his part while engaged in appellant's service under his contract of employment. Appellant would not be liable unless the defect in the insulation was due to a want of reasonable care on its part, or unless the defect could have been discovered and remedied by the exercise of reasonable care in the inspection of its wires. The instruction authorizes a...
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