City of Evansville v. Rinehart

• Decision Date: 05 February 1968
• Docket Number: No. 20673,No. 2,20673,2
• Parties: CITY OF EVANSVILLE, Indiana, Appellant, v. Darrell RINEHART, a Minor, by his next friend, Everett Rinehart, Appellee
• Court: Indiana Appellate Court

Page 495

233 N.E.2d 495

142 Ind.App. 164

CITY OF EVANSVILLE, Indiana, Appellant, v. Darrell RINEHART, a Minor, by his next friend, Everett

Rinehart, Appellee.

No. 20673.

Appellate Court of Indiana, Division No. 2.

Feb. 5, 1968.

Salm, Matthews & Warrum, Evansville, Ronald Warrum, Evansville; Jerry P. Baugh, Baugh & Baugh, Evansville, Mark P. Lockwood, Princeton, for appellant.

Sydney L. Berger, Evansville, Robert Fair, Princeton, for appellee.

BIERLY, Judge.

This action was commenced in the trial court by appellee, filing his complaint in two paragraphs, on the theories of nuisance and negligence.

The first paragraph as summarized by appellant, alleged '* * * that in 1951 developers of a certain subdivision in the City of Evansville entered into an agreement with the City whereby the developers would construct and maintain for a period of five years a private sewage system to serve the approximately fifty homes in the subdivision; that at the end of the five years if a city sewage system had not yet been extended to serve the subdivision the City would thereafter take over the maintenance of the system including the septic, or Imhoff, tank which was the sole treatment facility of the private sewage system installed by the developers; the system was installed and, after five years, the City became responsible for the maintenance of the sewage system and the Imhoff tank; the effluent from the tank discharged into a natural drainage ditch known as Raccoon Ditch or Slough; in 1958 the City installed tile under Vann Avenue to carry the waters of Raccoon Ditch, including the effluent from the Imhoff tank, from one point on the ditch to a point lower down on the same ditch; the effluent from the Imhoff tank received only primary sewage treatment and was not chlorinated or aerated and 'consisted of putrescent, poisonous, infectious and fecal matter, which polluted the waters of said Ditch and contaminated it with dangerous germs'; the waters of Racoon Ditch flow from the point of discharge of the Imhoff tank through the tile under Vann Avenue and Southeast Boulevard; the waters of Raccoon Ditch containing dangerour germs constituted a public nuisance unknown to the Appellee but known or should have been known to the Appellant; Appellee while playing along the ditch slipped and fell cutting his knee which became infected as a result of the germs in the contaminated waters of the ditch; Appellee thereby suffered excruciating pain for many weeks being confined to the hospital on many occasions where he was treated with dangerous drugs which placed his life in jeopardy; he sustained permanent injury to his leg and disability to his entire body in the form of osteomyelitis, septic arthritis, overgrowth of his knee and weakened resistance to future trauma or infection all proximately caused by the nuisance maintained by the Appellant; and as a result thereof the Appellee sustained permanent injury in the amount of $85,000.'

The second paragraph as summarized by appellant, alleged,

'* * * the above charges and added that the Appellant was negligent in maintaining the sewer system and permitting the alleged and dangerous conditions in Raccoon Ditch to exist in that the Appellant permitted the sewage from the Imhoff tank containing dangerous germs to be discharged into Raccoon Ditch without being secondarily treated and was further negligent in permitting sewage containing germs to be discharged into an open ditch without providing a proper outlet for the sewage; as a proximate result of Appellant's negligence the Appellee was damaged in the same manner as alleged in the first paragraph of Appellee's complaint and in the same amount of $85,000.'

The appellant denied the allegations set forth in the complaint of nuisance and negligence.

Trial was had by jury, which returned a general verdict for the appellee in the sum of $40,000.00. Appellant then filed its motion for a new trial, which was overruled, and consequently, such action constituted appellant's sole assignment of error.

Appellant divides his argument into three portions. The first deals with the trial court's action in excluding a portion of the testimony of an expert witness. The second deals with an instruction, and finally, the third deals with the question of excessive damages. For purposes of this appeal we will discuss each portion in the same order.

Appellant, in its motion for a new trial, alleges that:

'The Court erred in sustaining the objections of the plaintiff to the question hereinafter set forth, propounded by the defendant during the direct examination of James M. Clayton, a witness called on behalf of defendant, * * *.'

It appears from the record that Mr. Clayton had testified as to the coliform count per milliter at two points in Raccoon Ditch, and that, in his opinion, these counts were normal for that type of operation or installation and that in his opinion the Imhoff tank was operating properly at the time of the samples.

He then testified concerning records of other cities that he had reviewed at the Indiana State Board of Health in Indianapolis which had similar sewage treatment plants.

Finally, he was asked the...