Hollowell v. Greenfield

Decision Date13 May 1966
Docket NumberNo. 20152,No. 2,20152,2
PartiesRobert HOLLOWELL and Frances Katherine Haboush, as Special Co-Administrators of the Estate of Samuel Kirazian, deceased, Appellants, v. David GREENFIELD, by his next friend, Lois Faye Greenfield, Appellee
CourtIndiana Appellate Court

[142 INDAPP 346]

Alembert W. Brayton, Indianapolis, Kriner & Harman, Indianapolis, James D. Acher, Franklin, of counsel, for appellants.

Earl C. Townsend, Jr., John F. Townsend, of Townsend & Townsend, Indianapolis, Richard L. La Grange, Franklin, for appellee.

SMITH, Presiding Justice.

This is a action for damages for personal injuries to the appellee-plaintiff, an eleven year old boy predicated on the alleged negligence of the appellants-defendants' decedent.

The relevant facts as evidenced by the record are that on August 29, 1959 Samuel Kirazian owned the business known as Ashjian Bros. Rug Cleaning Co. located in the City of Indianapolis. Mr. Richard Greenfield, the appellee's father, had been an employee of the establishment for some seven years. The plant employees worked the five day week except for Mr. Greenfield. Kirazian employed him to drive a truck Monday through Friday and to keep the plant open on Saturday from 9 A.M. until noon to service customers and answer the telephone. Kirazian furnished him a key and placed him [142 INDAPP 347] in exclusive possession of the plant on Saturdays. Besides answering the telephone his duties also consisted of cleaning small rugs left over from Friday nights and to size and bleach the fringes on repaired rugs. For about two years Mr. Greenfield had been in the habit of bringing his son, the appellee herein, to the plant with him on these Saturday mornings.

On the Saturday morning that the injury occurred Mr. Greenfield again brought the appellee to the plant with him. The appellee entered and went into the back of the plant, along with his brother who accompanied Mr. Greenfield and the appellee that day. There was also evidence that a third child entered the plant from the rear and together the three began stuffing 'comic books' through a wringing machine used in the plant operation. When the appellee attempted to pass a comic book through the rollers his left hand was seized by the rollers mashing his fingers and requiring the amputation of all of them except the ring finger.

The appellee's complaint charged that Kirazian and the appellee's father were negligent in the following respects:

(a) They knowingly invited children of tender years, and particularly this plaintiff, to enter said premises and play therein on Saturday mornings, despite the fact that said heavy rollers were operated by electric motors which could readily be started by a child's merely pushing the operating bar which was within his easy reach and when they should have foreseen, in the exercise of reasonable care, that said children, including particularly this plaintiff, might be attracted to play with said wringer device.

(b) They failed to maintain and operate any character of master switch which cut off the power to said wringer motors when the plant was not in operation and when said children, particularly this plaintiff, played therein on Saturday mornings pursuant to the invitation and knowledge of Kirazian and his said agent.

(c) They failed to prevent plaintiff from playing with the wringer and failed to warn plaintiff of the dangerous character of said wringer device and how it would readily draw his little hand into it in event it was turned on when his [142 INDAPP 348] hand was close to it or holding something that might enter said wringer.

(d) They failed to provide and maintain any character or guard or device to prevent the hands of persons operating said device from being drawn into the rollers and particularly this plaintiff whom they invited to be present in and to play in and upon said premises.

(e) They negligently and knowingly showed plaintiff how to operate said wringer and permitted plaintiff and other children to play with said wringer and to press rags and papers therein when, in the exercise of reasonable care they knew or should have known that said tool was dangerous and likely to cause harm to a child of tender years, to-wit: the plaintiff who was only eleven years old and did not recognize the dangers of playing with said machine.

The appellee did not join his father as a party defendant but only charged that his father was the duly constituted and acting agent of the owner of the plant and that he was acting in the scope of his employment, thereby imputing the negligence of the appellee's father to the employer.

On April 12, 1962 Samuel Kirazian died and Robert Hollowell and Frances Haboush were appointed Special Co-Administrators of the estate. The court then ordered that Hollowell and Haboush be substituted as defendants. Proper service of summons was then issued to them as Special Co-Administrators.

Trial was had by jury which found for the appellee and assessed damages in the sum of $55,000.00. Judgment was entered in accordance with the verdict.

The sole assignment of error is the overruling of the motion for a new trial. Specifically the appellants have raised four specifications of error on which they rely for reversal.

The first specification of error urged by the appellants is that the trial court erred in failing to direct the jury to return the verdict in favor of the appellants. They contend that the [142 INDAPP 349] court should have directed the verdict for three reasons to-wit: that the appellants' decedent did not own the appellee the duty to treat him with reasonable care; that the appellee failed to show that the appellants' decedent was negligent; and that the evidence showed that the appellee was guilty of contributory negligence as a matter of law.

In answering these alleged errors we will deal with them separately although the appellants have grouped them under one assignment. The first to be so discussed is the contention that the appellee failed to prove that the appellants' decedent owed the appellee a duty of due care and for that reason the trial court should have directed the verdict. The argument propounded is that the appellee was a trespasser, or a mere licensee, and that therefore the only duty owed to the appellee was freedom from wilfull and wanton negligence.

A proper reply to this contention necessitates this court to first review the definition of an invitee and then to review the evidence most favorable to the appellee to determine if there was substantial, reliable, and probative evidence upon which the court's decision to submit the case to the jury could be founded.

This jurisdiction has long followed the Common Law in defining an invitee as a person who proceeds on the premises of another with the express or implied invitation of the owner or occupant to do some act which is of advantage to such owner or occupant or of mutual advantage to both. Samuel E. Pentecost Const. Co. v. O'Donnell (1942), 112 Ind.App. 47, 39 N.E.2d 812.

A trial court may properly give a pre-emptory instruction to the jury ordering them to find for the defendant only when there is a total absence of evidence, or legitimate inference, in favor of the plaintiff upon an essential issue, or where the evidence is without conflict and susceptible of but one inference and that inference is in favor of the defendant. Jackson Hill Coal & Coke Co. v. Bales et al. [142 INDAPP 350] (1915), 183 Ind. 276, 108 N.E. 962; Slinkard v. Babb, Wilson (1953), 125 Ind.App. 76, 105 N.E.2d 342, 112 N.E.2d 876, 117 N.E.2d 564.

In summarizing the evidence most favorable to the appellee we find that there was evidence presented that tended to prove:

For about two years Mr. Greenfield had taken Appellee into the plant to help him carry out his work on Saturday mornings. Appellee often would help with washing the rugs and with putting them through the wringer and with rolling them up as they came out of the wringer. Mr. Greenfield showed Appellee how to start and stop the wringer by pulling and pushing the control bar. But no one ever warned Appellee that the wringer was dangerous despite the fact it was constructed in such a manner that when the rollers were touching each other they would crush a human hand if the hand got between them. Kirazian had failed to install a master switch to cut off the electric power to the wringer when the plant was not running. Therefore, the wringer was always a potential danger to children because it was always ready to be started by any child who pushed the control bar. Mr. Greenfield would pay Appellee a quarter or some other sum of money to help with the work in the plant on Saturday mornings.

On four occasions Mr. Kirazian came to the plant on Saturday mornings and saw Appellee there playing or helping his father with the work. Kirazian saw Appellee in the office, in the drying room and just about anywhere in the building and never objected to Mr. Greenfield bringing Appellee in to help with the work or to be in the other parts of the plant. In fact, he joked about it and said, 'I suppose your father is paying you for the good work that you are doing,' when he saw Appellee helping his father operate the very wringer which was to injure Appellee later.

Although the employees were under strict orders from Mr. Kirazian to turn the large wheel at the end of the wringer on Friday evenings so as to raise the heavy top rubber roller off the bottom one to prevent the rollers from becoming flat over the weekends, this had not been done on Friday, August 28th, and the rollers were in a dangerous position touching each other on Saturday morning, August 29th. This dangerous condition of the rollers was not noticed by Mr. Greenfield until after Appellee's...

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