Indiana Union Traction Co. v. Sullivan

• Decision Date: 04 April 1913
• Docket Number: No. 7,834.,7,834.
• Citation: 101 N.E. 401,53 Ind.App. 239
• Parties: INDIANA UNION TRACTION CO. v. SULLIVAN.
• Court: Indiana Appellate Court

53 Ind.App. 239

101 N.E. 401

INDIANA UNION TRACTION CO.

v.SULLIVAN.

No. 7,834.

Appellate Court of Indiana, Division No. 1.

April 4, 1913.

Appeal from Circuit Court, Tipton County; Henry B. Nash, Judge.

Action by Ruel G. Sullivan against the Indiana Union Traction Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions to grant a new trial.

The claim of plaintiff was that the insulated wires in the top of the car, while apparently safe, and safe in fact for a current of not over 700 volts, were highly dangerous when charged with a 3,000 to 3,500 volt current, as was the actual condition, in that such a current would not be confined by ordinary insulation if a person came within a few inches of them.

James A. Van Osdol, of Anderson, Louis B. Ewbank, of Indianapolis, Kittinger & Diven, of Anderson, and J. R. Coleman, of Tipton, for appellant. Ellis & Ellison, of Anderson, for appellee.

HOTTEL, J.

This is an action for personal injuries sustained by appellee while in the employ of appellant, and alleged to have been caused by the escape of electricity from appellant's high voltage wires.

The complaint is in one paragraph, and states in detail facts showing that appellant is a corporation engaged in the business of operating a system of street and interurban railroads; that for such purpose it produces, carries, and stores electric currents; that a uniform supply along its various lines is maintained by stations and substations located at points distant from its central power station; that on and prior to the 12th day of November, 1907, defendant conducted one of said substations at the town of La Fontaine, in Wabash county, Ind.; that plaintiff was employed as tender for said station, his duties being to clean and look after certain machines and switchboards therein; that a few days prior to said date the defendant, for the purpose of making some changes and repairs at said station, placed a car upon a side track in close proximity thereto, and equipped such car with a switchboard and necessary appliances to use temporarily as a substation; that an electrical current of 500 to 700 volts could be and was then being carried and conveyed by means of insulated wires in such a way that a person being in close proximity to such wires would not be shocked or injured; that a wire charged with voltage of anything above 1,000 volts insulated in the regular way was extremely dangerous to those near or about the same; that the defendant was negligent and careless in placing said car at said point for said purpose, in this: that the same was too small and of not sufficient height of ceiling to enable a person having charge thereof to perform his duties with reasonable safety under the circumstances; that it negligently and carelessly placed and equipped two insulated wires along the ceiling of said car and connected the same at one end with its switchboard and equipment in said car and at the other end with high-tension wires carrying a voltage of 3,000 to 3,500 volts, and so attached as to charge said wires in said car with said high voltage; that said wires were so placed as to be in close proximity to the head of the person who would perform the duties of tender in said car; that, after its wires were so placed and connected, the defendant negligently and carelessly ordered the plaintiff to enter and take charge of such car, and to clean the machinery therein, and requires him to be in such parts thereof as would bring his head in close proximity to said heavily charged wires, and needlessly and unnecessarily exposed him to great danger of life and limb by being burned and shocked by the electricity in said wires; that the defendant negligently and carelessly failed and neglected to use reasonable care to provide the plaintiff with a reasonably safe place to perform his duty as aforesaid, and negligently and carelessly equipped said car as aforesaid, and negligently and carelessly used said car for said purpose, the same being too small and too low for said purpose, and negligently and carelessly ordered, directed, and required the plaintiff to clean said machinery and perform his duties in said car and in close proximity to said wires as aforesaid, and negligently and carelessly failed and neglected to notify or apprise plaintiff or give him any notice or warning whatever of the dangerous character of said wires and surroundings; that the plaintiff, in obedience to said order, and demand of defendant and in the line of his duty under said employment, did on said 9th day of November, 1907, enter said car and proceed with his duties as tender thereof, and while cleaning the machinery and appliances therein, where he was so ordered, directed, and required to be, was then and there, by reason and on account of said negligence and carelessness of the defendant, greatly burned, shocked, and injured by said electric current.

The complaint contains the necessary averments with reference to appellant's knowledge and appellee's lack of knowledge of the manner of the equipment of the car, and the dangers to which appellee was exposed by being required to work therein. A demurrer to this complaint was overruled, and the issues closed by a general denial. A trial by jury resulted in a verdict for appellee in the sum of $3,500, with which was filed answers to a number of interrogatories. A motion for judgment on such answers and a motion for a new trial were each overruled and exceptions saved. The ruling on each of these motions is assigned as error and relied on for reversal.

The sufficiency of the complaint is not here questioned, and it is conceded by appellant that, “under the extreme rule” applied in this court, there is evidence tending to support its allegations, but it is insisted that a part of this evidence was outside the issues, and that error was committed in its admission. One of appellee's witnesses was asked the following question: “I will ask you if this car which I have described, with the rotary in one end and the transformers in the other, is run up along the side of a regular relay station from which it receives the current of over 16,000 to 26,000 volts, what would be the modern and approved manner of equipping the car as to the end of the car, for safety that wires should be brought in? *** Tell which end of the car the wires should be brought in?” and the witness was permitted to answer: “The wires should come in the end of the car closest to the transformers.” Objections were made by appellant to this question, which were overruled, and exceptions properly saved. A motion was also made to strike out the evidence, which was also overruled and exceptions saved.

[1] The complaint expressly avers that the “defendant negligently and carelessly placed and equipped two insulated wires along the ceiling of said car, and connected the same at one end with its switchboard and equipment in said car, and at the other end with high-tension wires.” We think this averment entitled the appellee to any evidence that might tend to prove that appellant was careless and negligent in the placing of said high-tension wires. It will also be observed from the averments of the complaint above set out that it contains the general averment that the appellant “negligently and carelessly failed and neglected to use reasonable care to provide the plaintiff with a reasonably safe place to perform his duty.” Under this general averment, any evidence which would prove or tend to prove such lack of reasonable care was admissible. The evidence complained of tended to prove such lack of reasonable care, and was therefore within the issues.

Alleged error in giving and refusing certain instructions is next urged. We are here met with an earnest insistency by appellee that the instructions are not in the record, and that any error predicated in the giving or refusal to give any of them is therefore unavailable on appeal.

[2] It is too well settled to need the citation of authority that, unless the instructions are brought into the record by one of the modes prescribed by statute, they will not be considered on appeal. Appellee contends: (1) That the record fails to show a filing of the instructions. (2) That it is not shown that all the instructions given and refused are in the record.

[3] The following is a part of the record entry on the subject: “The argument of counsel having been heard, the court having given the instructions, which instructions given and those refused are by order of the court filed in open court, and are in the words and figures following.” Immediately following this entry are the instructions of appellee and appellant and those given by the court in the order named. At the beginning of appellee's instructions is his request that they be given, properly signed by (his) attorneys. There is also, at the beginning of appellant's instructions, a request that they be given, signed by its attorneys. At the close of appellee's instructions is a memorandum as follows: “Of the above and foregoing instructions tendered and requested by the plaintiff,, those numbered 1, 2, 3, 4, 5, 6, and 7 are refused, and those numbered 8, 9, 10, 11, 12,...