Danner v. Marquiss

• Decision Date: 21 April 1941
• Docket Number: 27519.
• Citation: Danner v. Marquiss, 218 Ind. 441, 33 N.E.2d 511 (Ind. 1941)
• Parties: DANNER v. MARQUISS.
• Court: Indiana Supreme Court

33 N.E.2d 511

218 Ind. 441

DANNER v. MARQUISS.

No. 27519.

Supreme Court of Indiana

April 21, 1941

Appeal from Circuit Court, Wells County; John F Decker, judge.

Abram Simmons, of Bluffton, and Cooper, Royse, Gambill &amp Crawford, of Terre Haute, for appellant.

Eichhorn Gordon & Edris, of Bluffton, for appellee.

ROLL Judge.

Lorin C. Marquiss brought this action against Hiram Danner to recover damages for personal injuries alleged to have been sustained on the 7th day of April, 1937. The complaint was in one paragraph, to which the appellant filed his answer in general denial. The jury returned a verdict in favor of appellee, and appellant appeals assigning as the only error the overruling of his motion for a new trial.

Appellant earnestly insists that the evidence is not sufficient to sustain the verdict. The record discloses the following facts which are not in dispute:

On the 7th day of April, 1937, about 4 or 4:30 in the evening, appellee was walking north on the sidewalk along the west side of Clinton Street in the city of Fort Wayne, Indiana, about one-half block south of the intersection of Clinton Street with Esmond Street. At that time, and at said place, the appellant, who was engaged in the business of moving houses, was moving a dwelling house south on Clinton Street on rollers built for that purpose. The power being used was supplied by a tractor. The tractor pulled the house by means of a cable, which was about 100 feet in length; that the comb of the roof of the house was parallel with the sidewalk, one slope of the roof being to the east and the other to the west. A brick chimney protruded through the west slope of the roof, so that the east side of the chimney came up through the comb of the roof. Before moving the house, appellant had taken down the chimney to one or two inches below the comb of the house, but left the bricks on the west side protruding above the roof, but below the comb.

A line of poles carrying a telephone cable, and electric wires of two service companies, extended through the alley intersecting Clinton Street one-half block south of Esmond Street. In order to clear the way for the movement of said house, workmen in the employ of each of the utility companies, owning said cable and wires, were dispatched to the scene of activity here in question, in order to care for said wires while the house was being moved southward past said cable and wires. The telephone company's workmen lowered the telephone cable to the street, so that the trucks would pass over the cable. The electric wires were above the cable, and they were raised to furnish clearance for the house. Appellant had notified each of the companies to provide clearance, but appellant paid the men for doing the work. In order to raise the service wires to afford clearance for the house, the workmen were stationed on the roof of the house, on the east side of Clinton Street, and some of them were on the line poles of the house. They were thus stationed so that they could switch the wires as the house moved to the south. In switching the wires, one of the wires caught a brick of the chimney and dislodged it; the brick was thrown from two to three feet in the air, and it struck the roof, and from the roof descended to the sidewalk, striking appellee on the head, causing the injuries complained of.

The complaint charges several acts of negligence. It alleged that the appellee was injured by being struck with a brick, or other hard substance, which fell from the roof or chimney of the house. It was alleged that the house was being moved through the public highway in a careless, negligent and unlawful manner by the appellant; that the appellant permitted the bricks of said chimney to become loose; that the appellant carelessly and negligently failed to remove the bricks before proceeding along said street; that appellant moved said house along the street without first erecting any barricades or other means of protecting pedestrians from the danger that ordinary prudent persons would guard against under like circumstances. That the appellant did nothing to prevent said bricks, as he started to move said building, from becoming loose and falling from said chimney. That appellant knew said loose bricks might fall, or, with the use of ordinary care, should have known or anticipated the condition of said chimney and taken ordinary or reasonable precaution to remove said loose brick, or hard substance, thereby preventing said brick or hard substance from falling to the street or sidewalk.

Appellant contends that the theory of the complaint was that the appellant negligently permitted the brick to fall from the chimney of the house, while the evidence disclosed that the brick which struck appellee was hurled from the chimney by the negligent handling of the wires by the linemen who were in the employ of the public utility, and, therefore, there is a variance between the allegations of the complaint and the proof.

The evidence does show that the brick was dislodged from the chimney by the electric wires which were being manipulated by the service company's workmen, and that the brick was thrown upward from that point, and then made a downward descent and fell on the roof, and then off onto and against the appellee. We are not impressed with the argument of appellant, that because the brick was hurled upward before it started its downward descent, there was not a falling of the brick. In other words, appellant says that the evidence shows that the brick did not fall from the chimney and strike appellee. We think the brick fell in the sense that it made a downward descent and was precipitated to the sidewalk. The upward course of the brick was occasioned by the switching of the wires, but even so, the fact remains, that the brick did fall and strike appellee. As pointed out above, the complaint specifically charged negligence on the part of appellant in failing to use any means or take any steps for the protection of pedestrians which an ordinary prudent person would have taken under the...