City of Kokomo v. Loy

• Decision Date: 17 December 1915
• Docket Number: No. 8730.,8730.
• Parties: CITY OF KOKOMO v. LOY.
• Court: Indiana Appellate Court

110 N.E. 694

CITY OF KOKOMO

v.LOY.

No. 8730.

Appellate Court of Indiana, Division No. 1.

Dec. 17, 1915.

Appeal from Circuit Court, Howard County; Wm. C. Purdum, Judge.

Action by Frank Loy against the City of Kokomo. Judgment for plaintiff for $3,500, and defendant appeals. Reversed, with instructions.

Herron & Byers and Bell, Kirkpatrick & Voorhis, all of Kokomo, for appellant. Harper & Fuelber, of Ft. Wayne, and Blacklidge, Wolf & Barnes, of Kokomo, for appellee.

SHEA, J.

Appellee recovered judgment in the court below for $3,500 for personal injuries sustained by him while, as an employé of appellant, attempting to unload a cannon located in the Kokomo City Park, known as Highland Park, by reason of the discharge of said cannon. Appellant assigns that the court erred: (1) In overruling its demurrer to the first and second paragraphs of appellee's amended complaint; (2) in sustaining appellee's demurrer to appellant's second paragraph of answer; (3) in permitting appellee to amend his complaint after the cause had been submitted for trial, and at the conclusion of his testimony; (4) in overruling its motion to withdraw the submission of the cause from the jury; (5) in overruling its motion for a new trial. In argument appellant states that the cause was impleaded, submitted to a jury, and the judgment awarded by the court below upon the theory that appellant, the city of Kokomo, is liable for an injury occurring to an employé of the board of park commissioners while engaged in the performance of his duties in Highland City Park; and whether presented by demurrer, objections to the introduction of testimony, or exceptions to instructions, it earnestly insisted below, and here contends, that this theory is wrong, and contrary to the great weight of reason and authority. The determination of this one question, therefore, will dispose of practically all the questions involved in this appeal.

[1] Appellee's complaint upon which the cause was first submitted to the jury was in three paragraphs. Briefly, the allegations of the first paragraph, in substance, show that appellant is a municipal corporation organized under the laws of Indiana; that, in the exercise of its corporate powers at and before the time hereafter mentioned, it voluntarily acquired, owned, and maintained a park known as “Kokomo City Park,” which was so maintained for the use and benefit of the city and its inhabitants and for other municipal objects; that appellant by its agents, the common council of the city, selected and appointed some of its citizens, who duly qualified, as a committee known as the board of park commissioners, to take charge and control of said park and its employés engaged in caring for same; that said commissioners and appellant city procured and placed in a commanding position in said park several cannons of large caliber, which were in no manner disabled, and had negligently and carelessly failed and neglected to spike the vents and plug the muzzles of the same; that in the nighttime of July 3, 1911, while said cannons were so negligently maintained in said park, one of them was loaded with a heavy charge of powder, dynamite, paper, stones, and other material by some person or persons; that appellee was at said time in appellant's employ and under the directions and orders of the board of park commissioners, and the superintendent of the park appointed by said board, and such other employés of appellant in said park intrusted with authority in the absence of the superintendent; that on July 3, 1911, the superintendent ordered and directed appellee, during the following days until his return, to obey the directions and orders of one Allen Riley, who was an employé in said park in the dual capacity of park policeman and laborer; that on the morning of July 4, 1911, which was a national holiday, appellee learned that one of said cannons had been loaded as stated, and notified one of the members of said board, who thereupon directed him to withdraw said charge, without in any manner equipping or furnishing him any means for so doing; that on the morning of the same day said Riley, acting as superintendent of the park, and in charge of same, and representing the board and appellant city, with full knowledge that said cannon was so loaded, and being then and there an employé of said city, whose orders and directions appellee was obliged to conform to, ordered and directed appellee to withdraw the charge from said cannon at once; that appellee remonstrated, but was again peremptorily ordered to withdraw said charge and informed by Riley there was no danger in doing so; that Riley, so representing the city, furnished appellee with a piece of stiff wire about six feet long, fixed it for his use, and directed him to insert it in the cannon so as to get hold of the charge to withdraw the same; that the withdrawal of the charge was fraught with great danger and required skill and experience, and that the wire was an unfit implement for such purpose, of which fact appellee was ignorant; that appellee was wholly without experience and had no knowledge of such work, all of which facts were well known to said Riley as such agent representing the city; that appellee relied upon said assurances and complied with said order as directed, and in attempting to withdraw the charge was compelled to stand almost immediately before the muzzle of the cannon, and Riley stood by in a place of safety and ordered him to proceed; that he inserted the wire in the cannon and withdrew a portion of the charge, and, upon inserting it a second time as directed, the cannon was discharged thereby with tremendous force and violence; that the discharge struck appellee's arm and body, tearing away and destroying his right arm, maimed and crippled his left arm and hand, lacerated and tore the flesh from his body, and hurled him against a stone wall, crushing his body and breaking some of his ribs, permanently injuring and crippling him; that he is permanently disabled from following his business of laborer and park gardener, at which he was able to earn $60 per month; that the negligence of appellant and its servants was the direct and proximate cause of his injuries, without any contributory negligence on his part.

The second and third paragraphs of appellee's complaint are substantially the same as the first, alleging more in detail that said park was maintained “for the benefit of the inhabitants of said city, for the purpose of enhancing the value of their realty, benefiting the public health, increasing the attractiveness of said city as a place of residence and business, and affording its residents a place for assembly, recreation, and amusement, and for the attainment of divers other municipal ends”; all of which were voluntarily exercised by appellant in its local and corporate capacity. In addition, it is alleged that on August 12, 1911, within 60 days after his injuries were inflicted, appellee duly notified the clerk of appellant city in writing of the time, place, cause, and nature of said injuries.

At the close of the evidence, appellee, by leave of court, amended the second and third paragraphs of his complaint by inserting, in substance, the following allegations: That on the morning of July 4, 1911, said Riley acted as superintendent of the park, and was in charge of same and represented the board of park commissioners and appellant city; that, as an employé of appellant, appellee's duties in said park were to mow the grass, clean up débris and rubbish, take care of trees and shrubbery, and work of a similar nature; that said Riley, while acting as superintendent, learned and had full knowledge that the cannon had been loaded, and thereupon carelessly and...