Indiana Serv. Corp. v. Johnston

• Decision Date: 26 May 1941
• Docket Number: No. 16462.,16462.
• Citation: 109 Ind.App. 204,34 N.E.2d 157
• Parties: INDIANA SERVICE CORPORATION v. JOHNSTON et al.
• Court: Indiana Appellate Court

109 Ind.App. 204

34 N.E.2d 157

INDIANA SERVICE CORPORATION

v.JOHNSTON et al.

No. 16462.

Appellate Court of Indiana, in Banc.

May 26, 1941.

Appeal from Noble Circuit Court; Fred L. Bodenhafer, Judge.

Action by John M. Johnston against the Indiana Service Corporation and another for injuries allegedly sustained when defendant Lawrence Hogle negligently drove an automobile into an electric light pole maintained by the defendant corporation, thereby causing another electric light pole also maintained by the corporation to fall upon the plaintiff. From an adverse judgment, the defendant corporation appeals.

Reversed.Barrett, Barrett & McNagny, Leigh L. Hunt, Mentor Kraus, and J. A. Bruggeman, all of Fort Wayne, for appellant.

McAdams & Lincoln and James P. Murphy, all of Fort Wayne, for appellee.

FLANAGAN, Judge.

This is an action brought by appellee John M. Johnston against appellant Indiana Service Corporation and appellee Lawrence Hogle to recover damages on account of injuries alleged to have been caused when appellee Hogle negligently drove an automobile into an electric light pole maintained by appellant, thereby causing another electric light pole also maintained by appellant to fall upon appellee Johnston.

Appellant's demurrer to the complaint was overruled. The cause was submitted to a jury which returned a verdict for appellee Johnston against appellant upon which the court entered judgment. Appellant filed its motion for a new trial which was overruled.

Appellant assigns as errors (1) the overruling of appellant's demurrer to the complaint; (2) the overruling of appellant's motion for a directed verdict; and (3) the overruling of appellant's motion for a new trial.

The complaint alleges in substance that appellant maintained an electric light pole at the corner of St. Mary's Avenue and Herman Street in the city of Fort Wayne, and another pole about 150 feet east of said intersection on Herman Street, which poles were connected by wires; that it negligently permitted its pole at the intersection to become old, rotten and decayed and unsupported or strengthened by any wires or brace wires; that appellee Hogle negligently ran his automobile against the pole located on Herman Street thereby causing the rotted pole at the intersection to fall upon appellee Johnston injuring him.

One of the reasons assigned in support of appellant's demurrer to the complaint was that the complaint shows on its face that any alleged negligence on the part of appellant was not the proximate cause of the injuries complained of.

[1][2] An essential element of proximate cause is the requirement that the result must be such as might reasonably have been anticipated in the ordinary experience of men. In applying this rule to a case like the instant one, wherein the alleged negligence merely created a condition by which the injury was made possible and the subsequent independent act of an intervening agency caused the injury, logic requires not only that the type of injury should have been reasonably anticipated but that the intervention of the independent agency should have been anticipated.

The rule has been so applied...