Indianapolis Water Co. v. Schoenemann

• Decision Date: 02 May 1939
• Docket Number: 16037.
• Citation: 20 N.E.2d 671,107 Ind.App. 308
• Parties: INDIANAPOLIS WATER CO. v. SCHOENEMANN.
• Court: Indiana Appellate Court

20 N.E.2d 671

107 Ind.App. 308

INDIANAPOLIS WATER CO. v. SCHOENEMANN.

No. 16037.

Appellate Court of Indiana, in Banc.

May 2, 1939

[Copyrighted Material Omitted]

James W. Fesler, Harvey J. Elam, Howard S. Young, Irving M. Fauvre and Howard S. Young, Jr., all of Indianapolis, for appellant.

Faust Faust, Medias & Faust, of Indianapolis, for appellee.

De VOSS, Judge.

This action was brought by appellee against appellant to recover damages for negligence in the construction and maintenance of a curb box.

The action was founded on injuries received by appellee on the 11th day of February, 1935, in the City of Indianapolis Indiana, when appellee tripped over a curb box. The complaint was in two paragraphs. Appellant filed an answer in two paragraphs to each paragraph of the complaint and issues were closed by replies in general denial of appellee to the second paragraphs of each answer.

No question is presented on the sufficiency of the pleadings. Trial was had by a jury, returning a verdict for appellee in the sum of $500. Along with the general verdict, the jury answered interrogatories propounded by appellant. The trial court overruled appellant's motion for judgment in its favor upon answers to such interrogatories, rendered judgment upon the general verdict and overruled appellant's motion for a new trial.

The first paragraph of complaint charges that appellant was engaged in supplying water in operating water lines in the City of Indianapolis, Indiana, through a system of water mains and lines constructed underground throughout the city; that one of such mains was located along Madison Avenue in said city; that as a means of turning on and shutting off water supply to patrons it caused to be constructed and maintained a water valve or plug in front of the premises at No. 2168 Madison Avenue in said city. That on the 11th day of February, 1935, and for a long time prior thereto said appellant caused to be constructed and maintained such water valve or plug and carelessly and negligently suffered and permitted said water plug or shut off valve to extend six inches above the ground; that said shut off valve or water plug was located two and one-half feet inside the curb line on the west side of Madison Avenue, and that on said 11th day of February, 1935, at a time when it was dark while exercising due care appellee walked against said shut off valve and was thrown to the ground, suffering injuries, that the injuries were caused solely by the carelessness and negligence of the appellant.

The second paragraph of complaint charges substantially as the first, and alleges further that appellant negligently suffered and permitted said water plug to extend six inches above the ground and neglected and refused to cause the same to be lowered, and further charges exclusive control of the instrumentality by the appellant and also sets out in detail the method and manner by which property owners might obtain water from appellant by service connections and the manner of installation thereof. To each paragraph of complaint, appellant has filed an answer in general denial and a second paragraph of answer alleging that in the year 1923, the appellant accepted an indeterminate permit from the Public Service Commission of Indiana and since said time has worked under the order of said commission. That on April 1, 1932, said Public Service Commission of Indiana adopted and approved rules for the carrying on of the business of this appellant. That they were accepted and put in force by appellant and that said rules and regulations provided that stop cocks should be provided with a regulation curb box as adopted by the company (appellant), that the top of the box should be placed on a level with the grade of the sidewalk, and that the curb box should be set by the consumer's plumber, remain the property of the consumer and be maintained by him, and that appellant had no right to interfere with said curb box.

Appellant assigns as error, "1st. The trial court erred in overruling appellant's motion for judgment on interrogatories and answers thereto. 2nd. Overruling appellant's motion for a new trial."

It has been determined by this Court and it is a familiar principle of law that judgment will be given on answers to interrogatories only in cases where there is an irreconcilable conflict between them and the general verdict, and in considering that question no reference will be made to the evidence. The general verdict must prevail over the special findings and answers thereto, if there could have been under the issues, proof of facts, not irreconcilable with those specially found, sufficient to sustain the general verdict. In determining that question we must necessarily look to the pleadings.

The complaint charges that the appellant negligently caused the construction and maintenance of the curb box. The answers to the interrogatories establish the fact the accident occurred on February 11, 1935; that appellee fell over a cut off box which was located in a grass plot between the sidewalk and curb; that the cut off box had been established about 1912, by a plumber employed by the property owner; that the property owner had furnished the material and labor and that the cut off box was installed in front of a vacant lot and was never used for the delivery of water; that the Public Service Commission had approved rules relative to installation, control and maintenance of this cut off box, that the same were in force at the time of the accident complained of; that title to the cut off box was never conveyed to the appellant; that the cut off box was the property of the lot owner.

There is nothing contained in the answers to the interrogatories nor is there any fact established by such answers that would preclude or would be irreconcilable to a general verdict upon the allegation in the complaint that the appellant caused the negligent construction and maintenance complained of. So far as the pleadings are concerned, the appellant, notwithstanding the rule of the Public Service Commission to the contrary, and in spite of the fact that labor and materials were furnished by some one other than appellant, and that the premises were owned by some one other than the appellant, and that the curb box never was used by appellant, and that appellant never had title to said curb box, might have caused the negligent construction and maintenance complained of in the complaint. We find no reversible error by the trial court in overruling appellant's motion for judgment on answer to interrogatories.

Appellant's next assignment of error is the overruling of appellant's motion for a new trial.

The causes set out in said motion are (1) the verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) error of court in giving of its own motion each of the instructions numbered 1 to 11, inclusive; (4) error of court in giving instruction No. 6 requested by appellee; and (5) error of court in refusing to give each of the instructions numbered 1, 2, 4, 5 and 7 as requested by appellant.

Appellant contends that the cut off box over which appellee tripped was not installed by appellant, never used by it, was owned by the property owner, and that such owner, under the rules of the Public Service Commission, had the duty of maintaining it. Appellant further asserts that the obligation to maintain equipment used in connection with utility service has been established in Indiana, and that the obligation depends on the ownership of the equipment. We think this statement is too broad. The Indiana cases cited to sustain this view deal with the question of management and control, as well as ownership.

"It seems to be settled law that, where the furnisher of electricity supplies the same to a customer, first through its own wires and then through the wires owned and maintained by such customer and over which the furnisher had no supervision or control, and an employe of the purchaser is injured by reason of the negligent manner in which the purchaser's wires are equipped and maintained, the party who merely sells the current is not liable." The Princeton Light & Power Co. v. Ballard, Administrator, 1915, 59 Ind.App. 345, 347, 109 N.E. 405, 406; and cases cited therein.

With this statement of the law we agree.

In the question to be determined in the instant case, the ownership of the instrumentality involved is not the dominating factor, but only a phase to be considered in determining the question of whose duty it was to maintain the instrumentality.

"Liability for negligence does not depend upon title; a person is liable for an injury resulting from his negligence in respect of a place or instrumentality which is in his control and possession, even though he is not the owner thereof * * *." 45 C.J. 881, § 317.

The evidence in this cause is practically without contradiction, except possibly as to the nature and extent of the injuries received by appellee, upon which issue nothing is presented by the appellant, and such evidence may be summarized as follows:

Appellant on the 11th day of February, 1935, and for some time prior thereto was engaged as a public utility in supplying water to the inhabitants of Indianapolis and environs, and in pursuance thereof had constructed a system of water mains underground throughout such City. On March 30, 1923 appellant accepted an indeterminate permit from the Public Service Commission of Indiana to operate as a utility in said City, and prior to said March 30, 1923, appellant had operated under a permit or franchise granted by the City of Indianapolis, which franchise was in effect on May 22, 1912. On the 1st day of April, 1932, appellant filed with said ...