Home Tel. Co. v. Weir

• Decision Date: 27 May 1913
• Docket Number: No. 8,005.,8,005.
• Citation: 101 N.E. 1020,53 Ind.App. 466
• Parties: HOME TELEPHONE CO. v. WEIR.
• Court: Indiana Appellate Court

53 Ind.App. 466

101 N.E. 1020

HOME TELEPHONE CO.

v.WEIR.

No. 8,005.

Appellate Court of Indiana, Division No. 1.

May 27, 1913.

Appeal from Circuit Court, Clark County; George H. D. Gibson, Special Judge.

Action by Oscar Weir against the Home Telephone Company. From a judgment for plaintiff, defendant appeals. Reversed and new trial ordered.

M. Z. Stannard and Jonas G. Howard, both of Jeffersonville, for appellant. L. A. Douglass and S. G. Wilkinson, both of Jeffersonville, for appellee.

SHEA, J.

Appellee brought this action to recover damages from appellant for injuries alleged to have been sustained by reason of its negligence in permitting a wire extending between certain of its poles to hang down, with the end of which appellee came in contact and was struck in the left eye. A demurrer to the complaint in one paragraph was overruled. Answer in general denial. A trial of the issues formed resulted in a verdict and a judgment for appellee. Appellant's motion for a new trial was overruled, and this ruling is assigned as error.

Briefly, the facts as shown by the complaint are that appellant is a telephone corporation engaged in operating a telephone system between various points in Indiana, among them the town of Sellersburg, Clark county, Ind., where for some years prior to February 10, 1903, it had conducted its business and maintained an exchange; that in the conduct of its business appellant had erected in said town a large number of poles, on which were strung metal wires, by means of which it transmitted messages. Some of these poles were located on Maple street, an improved public highway and street in a thickly settled part of the town, which was much frequented and traveled by the public generally. Several days previous to the date of the injury complained of one of the metal wires attached to a pole on Maple street had broken down, and hung over the sidewalk on the west side of the street, the end of it extending to about five feet of the surface of the sidewalk; that appellant knew the wire was down and so hanging for as much as three days prior to the happening of the injury, or with reasonable diligence might have known of this condition, and with this knowledgecarelessly and negligently failed to remove the wire, and permitted it to so remain until after appellee was injured; that the end of the metal wire was broken off at an angle, and the edge was very sharp at the point of breakage; that while appellee, on February 3, 1910, was lawfully using and passing along Maple street, where the wire was hanging down, said wire, without any fault or negligence on his part, came in contact with his left eye, striking the eyeball, and severely cutting and lacerating it.

Under the motion for a new trial the errors presented are the giving of instructions Nos. 1, 3, 8, and 13, requested by appellee, and the misconduct of counsel in argument. Instruction No. 1 sets out numerous facts upon which it bases a statement that appellee would be entitled to recover if all the material allegations of the complaint are proved. It is urged that the defense of contributory negligence was at issue, and that, even though the averments of the complaint are proved, the plaintiff would not be entitled to recover if contributory negligence is also shown, that the language is therefore misleading and harmful, and that the averments of the complaint, if proven, simply make a prima facie case. Instruction No. 8, in addition to other infirmities which will be pointed out, also states that if the material allegations of the complaint “have been proved to your satisfaction, your verdict should be for the plaintiff”; likewise instruction No. 13 ignores the defense of contributory negligence, and singles out and gives prominence to certain phases of the evidence, which, it is urged, invades the province of the jury.

[1] It has been held by this court, as well as the Supreme Court, that where instructions are given stating that plaintiff is entitled to recover upon proof of the allegations of the complaint, they may be cured by other instructions which fully cover the defense of contributory negligence. If there were no other infirmities in the instructions, the court would be inclined to overlook this omission, in view of the fact that there are other instructions which fully cover the defense of contributory negligence. New Castle Bridge Co. v. Doty, 168 Ind. 259, 79 N. E. 485;McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087;Indianapolis Traction, etc., Co. v. Smith, 38 Ind. App. 160, 77 N. E. 1140.

[2][3] But there are other infirmities in the instructions which we feel cannot receive the sanction of this court. By instruction 3 the jury are told that: “It was the absolute duty of defenda...