Appeal
from Hendricks Circuit Court; A. J. Stevenson, Judge.
Action
by Urban Moore against the Indianapolis Power & Light
Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
LAYMON, Judge.
This
is an action by appellee against appellant to recover damages
for personal injuries alleged to have resulted from the
negligent acts of the appellant. The complaint was in one
paragraph, to which the appellant filed a motion to make more
specific. This motion was overruled. A demurrer was
thereafter filed to the complaint, and the demurrer was also
overruled. An answer in general denial was then filed by the
appellant, closing the issues. Trial was had before a jury
resulting in a verdict and judgment in favor of appellee and
against the appellant. A motion for a new trial was filed,
which motion was overruled, and the appellant now prosecutes
this appeal, assigning as errors: (1) That the court erred in
overruling appellant's motion to make the complaint
more specific; (2) that the court erred in overruling
appellant's demurrer to complaint; (3) that the court
erred in overruling the motion for a new trial alleging (a)
that the verdict is not sustained by sufficient evidence; (b)
that the verdict of the jury is contrary to law; (c) that the
court erred in its rulings on admission and rejection of
certain evidence; (d) that the court erred in giving and
refusing to give certain instructions.
The
complaint in part is as follows:
" That on the eighth of January, 1931, and for a long
time prior thereto, the said defendant owned and operated an
electric power plant on Washington Avenue, in the city of
Indianapolis; that at said power plant they generated
electricity, which was used by manufacturing concerns and
private home owners in the city of Indianapolis; that one of
the companies purchasing electric energy generated by said
defendant was the Acme-Evans Milling Company, that said
company operated a flour mill in a building which was located
near the power plant of the defendant herein.
" Plaintiff further says that on the 8th day of January,
1931, he was employed by the Acme-Evans Milling Company, and
was working on the fourth floor of their mill and was engaged
in operating flour grinders for said company and had been so
engaged for a long period of time; that the defendant herein
furnished electric energy to said company which operated said
grinding machines and had erected and maintained a
transmission line running direct from said power plant to the
floor of the building on which this plaintiff was working.
That there was located in said building on the floor where
this plaintiff was working, an electric board which
controlled the power furnished by said defendant company, to
be used in operating said flour grinding machines; that said
defendant company furnished to the employer of this plaintiff
electrical energy at a voltage of about 2300 to 2500 volts;
that said voltage was brought direct to said electric board;
that said defendant knew the construction of said electric
board and the voltage that was ordered and permitted over
said transmission line.
" That the defendant had the exclusive charge and
control of the primary system which included all of the
electric machinery, generators and appliances generating
electric energy also the transmission line carrying said
electric energy to the electric board in the plant of
Acme-Evans Milling Company as above set out .
" Plaintiff further says that on the above named date he
was performing his work for said milling company and was
standing about 2 feet from the east side of said electric
board to which the transmission line as above described,
owned, controlled and operated by the defendant herein, was
attached. That at that time the usual voltage of 2300 to 2500
volts was being sent over said line into said electric board;
that at that time said electric board and all its connecting
parts, motors and motor circuits connected to this board were
in proper repair and free from grounds; that then and there
and at that time the defendant company herein, without
warning carelessly and negligently allowed and permitted a
voltage in excess of that for which the board was insulated
and in excess of the voltage normally transmitted over said
line, to be suddenly transmitted over said transmission line
as above set out , which excessive voltage came directly
from said defendant's power plant and equipment to the
building and to the electric board near which this plaintiff
was standing; and because of said sudden high and excessive
voltage, a flashover was caused at the points where the
terminals of said transmission line were connected to said
electric board and flashes of fire were caused to be sent
from said connecting points and an electrical explosion
occurred.
" Plaintiff further says that said defendant unlawfully,
carelessly and negligently erected and maintained said
transmission line and had and was on the above named date
transmitting electric energy over said transmission line not
having then and there and at that time, lightning arresters
or any other safety device to thereby prevent any excessive
voltage from being transmitted over said transmission line to
the point where the terminals of said line connected with the
electric board located on the fourth floor of the building of
the AcmeEvans Company as above set out; that by reason of and
as a direct result of the unlawful, negligent and careless
acts and omissions of the defendant in failing to install and
maintain on said transmission line said lightning arresters
or some safety device, and to use every other device, care
and precaution to prevent excessive voltage being transmitted
over said line, excessive
voltage was then and there and at that time transmitted as
herein above alleged.
" That by reason of one or more of the careless and
negligent acts as above set out, the flash over and
electrical explosion was caused as herein alleged and the
plaintiff was seriously burned and injured in this, towit: *
* *
" * * * That said injuries, as above described, were
directly and immediately caused by the careless and negligent
acts of said defendant, in allowing and permitting said
excessive voltage of electricity to be sent over said
transmission line to said electric board; and as a direct and
immediate result of the unlawful, careless and negligent act
of said defendant in failing and omitting to install and
maintain lightning arresters or some other safety device to
prevent said excessive voltage from being transmitted over
said transmission line to said electric board as above set
out, that by reason of the premises said plaintiff has been
damaged. * * *" (Our italics.)
The
appellant in its motion to make the complaint more specific
charges that the allegations pertaining to the negligent acts
complained of are conclusions and not recitals of ultimate
facts. In the case of P. and A. Dispatch, Incorporated,
et al. v. McDougall (1930) 91 Ind.App. 181, 170 N.E.
551, the court held: " There was no reversible error in
overruling defendants' motion to make the complaint more
specific where the averments of the complaint were sufficient
to apprise the defendants of plaintiff's cause of action,
especially where all the matters mentioned in the complaint
were peculiarly within the knowledge of the defendants."
The case of City of Logansport v. Green, Adm'x,
192 Ind. 253, 135 N.E. 657, was an action against the city
for the death of one electrocuted by a current transmitted
from a high voltage wire to a low voltage service wire by the
branches of a tree through which the wires were strung, and
the court held: " Error, if any, in overruling
defendant's motion to make the complaint more specific by
requiring plaintiff to state from which of the high voltage
wires the electricity escaped into the service wire, the
location of the tree through which it escaped and how long it
had been doing so, and exactly how it could be and was
transmitted to the service wire, was not prejudicial to
defendant, such facts being peculiarly within defendant's
knowledge, and constituting a defense, by way of rebuttal, to
plaintiff's prima facie case." The several
allegations in the complaint were sufficient to apprise the
appellant of the negligent acts complained of, and the court
properly overruled the motion to make more specific. The
appellant's demurrer challenges the sufficiency of the
complaint for the same reasons as stated in the motion to
make more specific, and the court properly overruled the
demurrer.
The
substantial facts as they appear by the evidence are: That
appellee was, an the 8th day of January, 1931, employed by
the Acme-Evans Milling Company and worked in Mill C; that the
appellant, power company, is a corporation organized under
the laws of the state of Indiana and operating as a public
utility, engaged in the business of furnishing light and
power to the inhabitants of the city of Indianapolis for
domestic and industrial purposes, with one of its electrical
generating plants located on Washington avenue in the city of
Indianapolis, Indiana; that immediately east of this plant is
the property of Acme-Evans Milling Company on which the mill
known as Mill C is located; that the Acme-Evans Milling
Company purchased from the appellant its electrical power
used for driving various motors which operated Mill C; that
the electrical power...