Indianapolis Water Company v. Harold
| Decision Date | 13 March 1908 |
| Docket Number | 21,229 |
| Citation | 83 N.E. 993,170 Ind. 170 |
| Parties | Indianapolis Water Company v. Harold |
| Court | Indiana Supreme Court |
From Marion Circuit Court (12,808); Henry Clay Allen, Judge.
Action by Milton S. Harold against the Indianapolis Water Company. From a judgment on a verdict for plaintiff for $ 300 defendant appeals. Transferred from Appellate Court under cl 2, § 1394 Burns 1908, Acts 1901, p. 565, § 10.
Reversed.
Baker & Daniels and Elmer W. Stout, for appellant.
Walter L. Carey and Joseph R. Williams, for appellee.
Appellee brought this action to recover damages for the wrongful death of his minor son. The allegations of the complaint are, in substance, as follows: That appellant is a corporation organized under the laws of Indiana, and owns and controls a body of water known as "the canal," extending from the town of Broad Ripple into the city of Indianapolis, and used for the purpose of supplying water to said city and its inhabitants; that the canal was from thirty feet to one hundred feet in width and very deep, and prior to the month of March, 1903, appellant had allowed a log or sill to be placed, and knowingly permitted the same to remain, across said canal near its intersection with Twentieth street in said city, which was used by appellant's employes, and by it knowingly permitted to be used by the public generally, as a means of crossing the canal; that a trodden and worn path led up to the log on both sides of the canal, and the public was induced and invited to use the log as a means of crossing; that there was no other means of crossing the canal within a distance of several hundred yards of the place where the log was situated, and no notice or warning of any kind was ever given by appellant to any one that the log was unsafe or dangerous as a means of crossing, but the log with its approaches was at all times held out to the public as a safe and available means of crossing the canal; that said log was ten or twelve inches in diameter and forty or fifty feet in length with two 2x6-inch planks laid on top of it, and left floating in the water with no stays, spikes or anything to hold it up except the force of the water, but it was fastened at each end to prevent it from floating away; that it was not braced or fastened in any other way, but was lying loose in the water and was very unstable and unsafe; that the top of the log was so close to the surface of the water that when the wind blew the water was blown over the top of the log, making it wet and slippery; that the log had a railing or banister on one side only, but at such a height as to make it of no use to a child in crossing the canal upon said log; that appellant was at all times fully aware of the dangerous and unsafe condition of said crossing, and had been warned that the same was a veritable death-trap, especially for children; that appellee's child was the second child drowned by falling off said log, all of which appellant knew; that the water beneath the log was very deep; that on March 7, 1903, appellee's son Harry Harold, age nine years, in company with another boy near the same age, having been requested by their teacher to procure some pussy-willow blossoms, walked up the canal for that purpose, and in attempting to cross on said log appellee's said son, on account of the tottery, slippery and unsafe condition of said log, fell therefrom into the water and was drowned; that said child was of immature years, could not swim, had no notice that the log was unsafe or dangerous, and was not warned in any way that the crossing was dangerous or that the foot log was not intended for the free use of the public; that said child was a strong, healthy, bright boy, and possessed of all the natural instincts of childhood; that the day on which he was drowned was unusually warm, and the manner in which the log was placed in the water was naturally inclined to attract a child, and, being without warning of danger and of immature judgment, he was thereby attracted to his death; that on account of his tender years said child was non sui juris and incapable of appreciating the danger there was in crossing the canal on said log, and that the carelessness and negligence of the appellant in placing and allowing said log to be placed, and in permitting it to remain, in the position described was the sole cause of said child's death, and that by reason of such negligence appellee was deprived of the services of his minor son and otherwise damaged.
Appellant's demurrer to this complaint on the ground of insufficient facts, and also its motion for a new trial were overruled by the court below, and these rulings have been assigned and urged as errors upon appeal.
It is not made to appear from the allegations of the complaint that the foot log subserved any useful purpose in connection with appellant's business; but it is averred that the log was maintained in an insecure and dangerous condition, with knowledge that it was a death-trap for children, and that previously one child had been drowned by falling therefrom; that it was so maintained near the intersection of a public street of the city of Indianapolis with the canal, that the public was invited and induced to use the log as a means of crossing; that the deceased child was unable to appreciate, and ignorant of, the danger in crossing, was lured on by the instincts of childhood, and could not reach the hand rail, but fell from the log because of its tottery, slippery and unsafe condition. Conceding, as the demurrer does, that appellant, knowing the probable consequences, maintained the foot log at a place and in a condition to imperil the lives of persons, invited and induced to use it in ignorance of their danger, and that in these circumstances appellant's minor son, unable to comprehend his peril, fell from the log because of its unsafe condition, and was drowned, we think a cause of action is stated, and that the complaint was rightly held to be sufficient. Young v. Harvey (1861), 16 Ind. 314; City of Indianapolis v. Emmelman (1886), 108 Ind. 530, 58 Am. Rep. 65, 9 N.E. 155; Penso v. McCormick (1890), 125 Ind. 116, 9 L.R.A. 313, 21 Am. St. 211, 25 N.E. 156; City of Pekin v. McMahon (1895), 154 Ill. 141, 39 N.E. 484, 45 Am. St. 114, 27 L.R.A. 206; Brinkley Car Co. v. Cooper (1895), 60 Ark. 545, 31 S.W. 154, 46 Am. St. 216; Price v. Atchison Water Co. (1897), 58 Kan. 551, 50 P. 450, 62 Am. St. 625; Schmidt v. Kansas City Distilling Co. (1886), 90 Mo. 284, 1 S.W. 865, 2 S.W. 417, 59 Am. Rep. 16.
Albert Richmond was with Harry Harold at the time of the accident. He testified that they were hunting pussy-willows, and crossed the canal on the Seventeenth street bridge, and there found a rock with a cord five or ten feet long tied to it which they took turns in throwing into and pulling out of the water as they walked up the canal; that they walked past the foot log about a square, and then turned back; that they thought the log would break with them, but seeing a man cross upon it they started to cross; that he was in front and told Harry not to throw the rock in because he was afraid to cross and might fall in, but does not know whether he threw it in or not; that he felt the bridge shake, and turned around and saw Harry falling off; that there was a banister along the north side, which he took hold of when he...
To continue reading
Request your trial