Gwaltney Drilling, Inc. v. McKee

Citation148 Ind.App. 1,259 N.E.2d 710,22 Ind.Dec. 48
Decision Date30 June 1970
Docket NumberNo. 969A157,No. 2,969A157,2
PartiesGWALTNEY DRILLING, INC., Appellant, v. Marietta McKEE, Appellee
CourtCourt of Appeals of Indiana

Robert H. Hahn, Bamberger, Foreman, Oswald & Hahn, Evansville, John O. Moomaw, Bloomfield, for appellant.

Alvin Seal, Seal & Seal, Washington, James B. Sparks, Bloomfield, for appellee.

SHARP, Judge.

This is an action brought by the Appellee against the Appellant Gwaltney Drilling, Inc., and Commonwealth Natural Gas Corporation to recover damages for personal injuries sustained by Appellee Marietta McKee when she allegedly fell in a trench which Appellant Gwaltney Drilling had allegedly excavated and backfilled in a public alley-street in the Town of Odon, Indiana.

The action below was tried against only the Appellant and not against Commonwealth Natural Gas Corporation. Commonwealth filed and was granted a Motion for Summary Judgment below, and Appellee McKee then amended her complaint by removing Commonwealth as a defendant. Commonwealth has filed no brief, was not named in the judgment below, and is not a proper party to this appeal.

The Plaintiff's complaint alleged the Defendant knew or should have known of the dangerous condition of the trench and charged Defendant with the following specifications of negligence:

'(a) In leaving loose and soft dirt in said trench.

(b) In failing to properly tamp the earth in said trench so as to make it safe for pedestrians and particularly for plaintiff.

(c) In failing to make proper and necessary inspection to determine the condition of said trenchway.

(d) In failing to erect warning signs so as to notify plaintiff and other persons walking in said area of said dangerous condition.'

The Defendant-Appellant filed answer in admission and denial under Rule 1--3 of the Rules of our Supreme Court. The case was tried by a jury which resulted in a verdict of $35,000.00 for Appellee. The Motion for New Trial of Appellant was overruled which is the sole assignment of error here.

We must consider the evidence and all inferences in the light most favorable to Appellee.

The evidence discloses that Appellant as contractor had done extensive excavation, trenching and ditching in the Town of Odon, Indiana, as a part of the installation of gas lines in said town. This project had commenced sometime before June 12, 1967, and was still in process on that date. The Street Commissioner of the Town testified that the trench in the alleyway that connects Oak and Spring Streets was a part of the system of trenches dug by the Appellant at that time in the town. The same method of digging was used on all the ditches dug at that time in this town by Appellant. He testified that in some places these trenches were not mashed down after they were filled. In this regard the Street Commissioner testified:

'Q. Just generally in the town--what you have observed in regard to these trenches after they have been filled?

A. Well, if you mean on Oak Street--there are places on Oak Street--places all over there that I have had to have filled.

Q. Mr. Tarvin, did the defendant then fill these trenches more than one time?

A. Yes, I would say they did after so long a time.

Q. How many times did they fill these trenches?

A. Oh I don't know. I don't know. I would say I know of two times. I'm not going to say any more.

Q. Have you observed them--have you seen them filling the trenches the second time?

A. Yes.

Q. An what was the condition of the trenches before they filled them the second time?

A. Some of them had gone down a foot or six inches and some of them you could see the pipe.

Q. What, if anything, Mr. Tarvin, did you see and observe in regard to the trenches following a rain?

A. Quite a few of them had settled.

Q. What do you mean by that, Mr. Tarvin?

A. There would be places where the dirt didn't go down. There would be holes there.'

Appellee, Marietta McKee, further testified on direct examination that on June 12, 1967, the date of the accident, she went to the home of Harry Mize and parked on Oak Street in order to go with Judy Mize to Huntingburg for a ceramic lesson. She parked her car on the east side of the street and walked across the street to the front gate of the Mize residence. She went through the house out to the carport on the east side of the residence. She was a few minutes early and Judy Mize was not quite ready and Mrs. McKee told Judy Mize that she would walk to her car and get her basket and then go to the Mize car and wait for Judy Mize. After walking through the carport she went down along the east side of the Mize's yard into the street and as she approached the street she moved to the east and southwest and looked these directions for approaching cars. As she approached this place she looked to the east for approaching cars and then to the southwest and then proceeded on her way and about that time her foot went into the soft ground and as she was falling her back snapped; it was just like a stick breaking and she fell to her knees. She injured her right leg and knee. She immediately through that she should get out of the road and she pulled herself across the blacktop and over into the grass and yelled for help. Judy Mize found her shortly and she yelled for help. She was taken by ambulance to the hospital in Washington, Indiana.

There is a little street which runs east and west and an alley runs north from this street. The place where she stopped was from the south edge of the alley and was on the north side of the little street which runs east and west; she stepped in the hole on the north side of the east and west street with her right foot and fell southward or southwest. She fell on June 12, 1967 at about 7:45 to 8:00 in the morning. She pointed out various parts of the accident scene on a blackboard diagram. The alley was not paved on June 12, 1967, but there was some blacktop on the curved part of Oak Street where it curved to the other street that runs east and west. Before she fell she had crossed the blacktop on Oak Street south of where she fell. She was walking south and a little to the west when she fell. Her car was parked on the east side of Oak Street under a shade tree about thirty-five feet from the other street mentioned. She was coming down the alley intending to go over to her car's right passenger door to obtain her purse and basket.

One witness, Palmer Bechtel, who had been a resident of Odon for 35 years testified that prior to June 12, 1967, he observed Appellant putting in a gas line there. He saw them digging a trench and gas line. Some of these trenches came by his residence which adjoins his garage. The lines came in front of his residence, between the residence and the garage, and then south of the garage and down to the next lane to Spring Street. He had occasion to see this work being done generally in the Town of Odon and Gwaltney Drilling Company was there most of the summer. The trenches were for the most part filled with a tractor and blade. A bulldozer type of blade was used at least in his area. A tractor with blade pushed the dirt into the trench. He observed that the dirt naturally settled after a rain and would sink. He observed no warning signs in this area and there was no watchman there to warn people. After a rain the dirt settled down and left the ditch partially open. In his area nothing else was done with the trench except to scrape and push the dirt into the trench. In his area he filled the trench himself after the tractor pushed the dirt into the trench.

Judy Mize, a companion of Appellee on the date in question, testified she saw Marietta McKee on June 12, 1967, and they were going to a ceramic lesson at Huntingburg. She first saw Marietta McKee on that day in Odon at the home of her father, Harry Mize, at about 8:00 o'clock. She and Mrs. McKee were going out the back door and Mrs. McKee went on down to her car to get her basket and things to take along. Mrs. McKee was going to put these items in the Mize car to go to Huntingburg and Mrs. McKee fell in a trench on the way to the car. She was looking around for Mrs. McKee before she saw her, and then she went out to find out what was wrong and to see if she could help her.

Mrs. McKee was on the other side of the street laying at the side of the grassy area by the sidewalk. She went to see if she could halp Mrs. McKee and then she called the ambulance to come and take Mrs. McKee to the hosptial. Reverend Lovell was in the area at the time and came up and there were some other men that were working there with the gas company who did not come up to offer help. These men were working across the street where the York's Pharmacy was being constructed. The men with the gas company got a camera and came back before the ambulance arrived and took possibly two or three pictures. Judy Mize then went in her car to go to Huntingburg. Reverend Lovell is now in Terre Haute. Her mother's name is Lorene. Her mother just had eye surgery and her other eye is going bad. Lorene Mize is in St. Louis and they didn't want her to take the risk of losing what sight she has by coming to the trial. Judy Mize saw the trench on the day in question and it was located a little to the right of the telephone pole and back in Maxwell's yard. She indicated the trench's position, crossing the street, on the diagram with respect to a telephone pole and a bush. She observed the trench and it wasn't even, was loose and just dropped down where it cut across. She saw them dig and fill up the trench. They filled it up with what appeared to be a garden tractor which went over it and filled it up. Some type of blade was on the front of the tractor and the blade pushed the dirt into the trench. There were no barricades, warning signs or watchmen where this happened.

On cross-examination the Appellee testified:

'Q. And when you went there did you know--

A. As far as that definitely being trench work I did not know that. I said...

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