Indianapolis Water Co. v. Harold

• Decision Date: 31 December 1906
• Docket Number: No. 5,707.,5,707.
• Parties: INDIANAPOLIS WATER CO. v. HAROLD.
• Court: Indiana Appellate Court

79 N.E. 542

INDIANAPOLIS WATER CO.

v.HAROLD.

No. 5,707.¹

Appellate Court of Indiana.

Dec. 21, 1906.

Dissenting Opinion Dec. 31, 1906.

Appeal from Circuit Court, Marion County; Henry Clay Allen, Judge.

Action by Milton L. Harold against the Indianapolis Water Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker & Daniels, for appellant. Walter L. Carey and Joseph R. Williams, for appellee.

ROBY, J.

Action by appellee for the recovery of damages on account of the death of his infant son. The complaint is in one paragraph, to which a demurrer for want of facts was overruled. Answer in general denial was filed and the issues submitted to a jury which returned a verdict for $300, upon which judgment was subsequently rendered.Appellant's motion for a new trial was overruled. Its assignments of error are that the court erred in overruling its demurrer to the complaint and in overruling its motion for a new trial.

Facts substantially as follows are averred in the complaint: Appellant is a domestic corporation; its principal place of business being in Marion county. It owns and controls a body of water known as the “canal,” about 8 miles long, from 30 to 100 feet wide and very deep; its use being to supply water to the city of Indianapolis. The canal enters the corporate limits of said city on the north side, and flows into White river in the southwest portion thereof. Previous to March, 1903, defendant placed, allowed to be placed, and knowingly permitted to remain, a certain log across said canal, near its intersection with Twentieth street, which log was used by its employés and knowingly permitted by it to be used by the public generally as a foot log or means of crossing said canal. A traveled and well-worn path, led up to it at both sides of the canal, and the public was induced and invited to use it as a means of crossing. No notice or warning was given that said log was in any way unsafe, or that the public were not at liberty to use it or the paths leading up to it, but it was held out as a safe means of crossing the canal. There was no other means of crossing within several hundred yards. The log was 10 or 12 inches in diameter, 40 or 50 feet long, with two 2x6 planks laid on top of it. Its ends did not rest on the banks of the canal, but were chained to prevent its floating away and were sustained by the water. It was not braced. Its top was close to the surface of the water, which was blown over it by the wind, making it wet and slippery, unstable and unsafe. It was provided with a banister on one side only, which was of no use to a child. The defendant had been warned that such foot log was dangerous, especially to children, and was warned of its dangerous and unsafe condition. “Plaintiff's minor child so drowned, as hereinafter described, is the second child drowned by falling off of such log, all of which said company well knew.” On March 7, 1903, said minor child, Harry Harold, aged nine years, in company with another boy and about the same age, having been requested by their teacher to procure for her some pussy willows, walked up the canal for that purpose, and in attempting to cross on said log, his said son, on account of the tottery, slippery, and unsafe condition thereof, fell therefrom into the water and was drowned. Said son was a child of immature years, could not swim, had no notice that said log was dangerous or unsafe, was not warned in any manner that said crossing was dangerous, or that said log was not intended for free use. He was a strong bright boy, possessed of the natural instincts of childhood, and on account of his tender years was non sui juris and incapable of appreciating the danger there was in crossing on said log. The negligence of the defendant in placing, allowing to be placed, and permitting said log to remain in the position as aforesaid was the sole cause of said death. Other averments relate to the damage to the plaintiff caused by the death of said child.

The general proposition as asserted against the sufficiency of the complaint is that the owner of real estate is under no duty to keep it in any particular condition for the benefit of trespassers or of volunteers going upon the same for their own purposes. Evansville, etc., v. Griffin, 100 Ind. 221, 50 Am. Rep. 783;City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155, 58 Am. Rep. 65;Thiele et al. v. McManus, 3 Ind. App. 132, 28 N. E. 327. A complaint in a case of this nature must show the existence and violation of a legal duty with resulting injury and damage, in order to withstand a demurrer. The duty which furnishes a basis for legal liability because of negligence is not determined from the consideration of purely formal elements which may be involved in the determination of the question. The rule of law is that one should not so use his own property as to injure the person or property of others. This rule is applicable to the owner of both real and personal property, and is most reasonable and just. The owner of an uninclosed lot in Indianapolis, who partly dug a well upon it, afterward abandoning the same, was held liable for the value of a horse which fell into the excavation and was killed. The court said that whether the action could or could not be maintained “depends upon the degree of probability there was that such accident might happen from thus leaving exposed the partially dug well, considered, perhaps, in connection with the usefulness of the act or thing causing the danger. If the probability was so strong as to make it the duty of the owner of the lot as a member of the community to guard that community from the danger to which the pit exposed its members, in person or property, he is liable to an action for loss occurring through his neglect to perform that duty.” Young v. Harvey, 16 Ind. 314. This logical basis upon which to determine the question of legal duty has been repeatedly expressed by the courts of this state. Chicago, etc., v. Fox, 70 N. E. 81, 38 Ind. App. -; Cincinnati, etc., Co. v. Brown, 32 Ind. App. 58, 69 N. E. 197;Graves v. Thomas, 95 Ind. 361, 48 Am. Rep. 727;Penso v. McCormick et al., 125 Ind. 116, 25 N. E. 156, 9 L. R. A. 313, 21 Am. St. Rep. 211;Mayhew v. Burns, 103 Ind. 328, 337, 2 N. E. 793;Carskaddon v. Mills et al., 5 Ind. App. 22, 31 N. E. 559;Morrow v. Sweeney, 10 Ind. App. 626, 38 N. E. 187.

A standard text-book expresses the idea in the following language: “If an act you are contemplating, right in itself, will likely cause some one to expose himself to danger, which he does not anticipate, it is your duty to take care that such exposure does not prove injurious to him. In determining the question whether the act will induce such exposure, it is your duty to consider the motives and impulses that induce actions by those who are likely to be influenced by your act. If men may be misled in their judgment by your act, you must take measures to warn them, or to avoid injuring them, by proper care. If children, from their own childish instinct and curiosity, may be led into danger, such care is due them also.” Ray, Neg. of Imposed Duties (Personal) 33. The doctrine of the “turntable” cases was stated by Judge Dillon in the second trial of the initial case of the kind as follows: “If the defendant did or had reason to believe, under the circumstances of the case, that the children of the place would resort to the turntable to play; and, if they did, they would or might be injured, then, if it took no means to keep the children away and no means to prevent accidents, it would be guilty of negligence, and would be answerable for damages caused to children by such negligence.” Stout v. Sioux City R. Co., 2 Dill. (U. S.) 294, Fed. Cas. No. 13,504; Id., Fed. Cas. No. 13,503; Sioux City R. Co. v. Stout, 84 U. S. 657, 21 L. Ed. 745. The doctrine is not confined to cases in which the injury complained of is caused by a turntable, but applies to facts coming within its reason. Stendal v. Boyd (Minn.) 69 N. W. 899, 1 Am. Neg. Rep. 94. In a case decided by the United States Supreme Court in 1894 the facts were analogous to those previously considered by the Indiana Supreme Court and the same conclusions were reached. Penso v. McCormick, 125 Ind. 116, 25 N. E. 156, 9 L. R. A. 313, 21 Am. St. Rep. 211;Union Pac. Ry. Co. v. McDonald, 152 U. S. 267, 14 Sup. Ct. 619, 38 L. Ed. 435. The opinion in the case last cited contains an exhaustive review of authorities. Its essence is expressed by the following excerpt, to which a negative answer is given: “In the present case there was no express invitation to the plaintiff to come upon the premises of the railroad company for any purpose, but if the company left its slack pit without a fence around it or anything to give warning of its really dangerous condition, and knew, or had reason to believe, that it was in a place where it would attract the interest or curiosity of passersby, can the plaintiff, a boy of tender years, be regarded as a mere trespasser for whose safety and protection while on the premises in question, against the unseen dangers referred to, the railroad company was under no duty or obligation whatever to make provision?” The doctrine has been often applied to cases in which the attraction and the danger were connected with bodies of water. City of Indianapolis v. Emmelman, 108 Ind. 535, 9 N. E. 155;City of Pekin v. McMahon, 154 Ill. 145, 39 N. E. 484, 27 L. R. A. 206, 45 Am. St. Rep. 114;Price v. Water Co., 58 Kan. 551, 50 Pac. 450, 62 Am. St. Rep. 625; Stendel v. Boyd, supra.

The complaint is reinforced by the averment of an invitation extended to the general public to cross at and use the footbridge in question, under which it cannot in any view be held that the complaint shows the child to have been a trespasser to whom appellant was under no obligation, and the court did not therefore err in overruling the demurrer.

In support of its second assignment of error, appellan...