Hines v. Nichols

• Decision Date: 08 March 1921
• Docket Number: 10,660
• Parties: HINES, DIRECTOR GENERAL OF RAILROADS, v. NICHOLS, ADMINISTRATOR
• Court: Indiana Appellate Court

130 N.E. 140

76 Ind.App. 445

HINES, DIRECTOR GENERAL OF RAILROADS, v. NICHOLS, ADMINISTRATOR

No. 10,660

Court of Appeals of Indiana

March 8, 1921

Rehearing denied June 28, 1921.

Transfer denied October 12, 1921.

From Morgan Circuit Court; Alfred M. Bain, Judge.

Action by Harry B. Nichols, administrator of the estate of Bruce C Nichols, deceased, against Walker D. Hines, Director General of Railroads. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Samuel O. Pickens, Charles W. Moores, R. F. Davidson, and Owen Pickens, for appellant.

Homer Elliot, for appellee.

OPINION

BATMAN, J.

This is an action by appellee against appellant for damages arising out of the death of appellee's decedent, which occurred while he was working for appellant as a lineman, stringing wires in his railroad yards in the city of Indianapolis, by reason of an electric shock received from a high-voltage wire with which he came in contact. The complaint is in a single paragraph, and alleges, in addition to the fact of his employment, the conditions surrounding his work, the death of said decedent, and the acts of negligence on the part of appellant, which were the proximate cause thereof; that appellant was engaged in intrastate commerce, at the time of the occurrence in question, and prior thereto had rejected the Act of March 8, 1915, commonly known as the "Indiana Workmen's Compensation Act," (Acts 1915 p. 392, § 80201 et seq. Burns' Supp. 1918) and had given due notice thereof, which rejection was still in force at such time; that said decedent was eighteen years of age at the time of his death, and had never at any time rejected said act; that he was in good health, capable of earning and did earn $ 75 per month, and had previously been emancipated; that he left surviving him, as his next of kin and as his sole heirs at law, his father Harry B. Nichols, his mother Rose Lee Nichols, and his sister Ailene Galloway, all of whom, by reason of his death, suffered a pecuniary loss in the sum of $ 10,000. The cause was put at issue by a general denial, and afterwards submitted to a jury for trial, resulting in a verdict in favor of appellee for $ 6,000. Appellant's motion for a new trial was followed by appellee's offer to remit $ 2,000 from the amount of the verdict. Said motion was then overruled, and judgment was rendered on the verdict for $ 4,000. Appellant is now prosecuting this appeal on an assignment of errors, calling in question the action of the court in overruling his said motion.

The only reasons presented by appellant in support of its contention, that the court erred in overruling his motion for a new trial, are based on the action of the court in giving instructions Nos. 1, 2, 3 and 7, and on a claim that the damages assessed by the jury are excessive. There was no error in giving said instruction No. 1, as the error of which complaint is made, was clearly invited by appellant in requesting the court to give instruction No. 2, tendered by him. Indianapolis, etc., Traction Co. v. Senour, Admx. (1919), 71 Ind.App. 10, 122 N.E. 772 and cases cited.

Appellant's objection to instruction No. 2 is based on a claim, that it informed the jury that electricity is a dangerous element, and because of that fact it was his duty to exercise more than ordinary care for the safety of appellee's decedent. That electricity is a dangerous element is a fact so firmly established and well known that to so assume and state in an instruction, where dangers arising from its use are involved, is not error. Such fact, however, does not require that a master use more than ordinary care for the protection of his servants from dangers arising therefrom. Union Traction Co. v. Berry (1919), 188 Ind. 514, 121 N.E. 655, 124 N.E. 737. While ordinary care still remains the measure of a master's duty toward his servant, notwithstanding the presence of such a dangerous element as an electric current, the quantum of such care, made necessary by reason of the presence of such dangerous element, is a fact to be considered in determining whether a master has discharged his duty toward his servant in a particular instance. Thus it has been said: "Ordinary care ebbs and flows with the danger to be fairly anticipated by a man of reasonable prudence from the circumstances and conditions involved in each case." Louisville, etc., Traction Co. v. Walker (1912), 177 Ind. 38, 97 N.E. 151. The instruction under consideration is well within the rules stated. While it informed the jury that greater care must be exercised to avoid danger, where an electrical current is present, than would be required where such a dangerous element was absent, still in the same instruction, it clearly limited the care required under such circumstances to ordinary care, by informing the jury that "negligence, as the word is meant in these instructions, simply means the want of due care, or such care as ordinarily prudent persons would exercise under like or similar circumstances, * * * No hard or fast rule can be laid down, that will fit every case, as the measure of care to be exercised must depend upon the circumstances. * * * So having in mind all the conditions, as you find from the evidence that they existed, the question for you to determine is, did the defendant under the circumstances, use due care." From the context it is apparent, that the word "measure" was used in the sense of "quantum," and that "due care" as last used, was used in the same sense as first stated, viz: "such care as ordinarily prudent persons would exercise under like or similar circumstances." When these terms are so considered, we are of the opinion that said instruction correctly limits the care, which appellant was required to use for the safety of appellee's decedent to ordinary care, and that the court did not err in giving the same.

Appellant contends that instruction No. 3, is erroneous, as it invaded the province of the jury: (1) By stating that the condition arising from the arrangement of the wires on the pole, was a dangerous one, and (2) by stating that appellee was entitled to recover, if the decedent met his death by reason of such dangerous condition. An examination of said instruction discloses, that it does not assume that the arrangement of the wires on the pole created a dangerous condition, as appellee's right of recovery is expressly conditioned on the fact, that the jury should so find. Any error arising from an assumption that such dangerous condition, if found, was the result of appellant's negligence, and therefore entitled appellee to a recovery, was clearly invited by instruction No. 2 tendered by it, with a request that it be given.

Appellant's objection to instruction ...