Lyons v. City of New Albany

• Decision Date: 05 November 1913
• Docket Number: 8,044
• Citation: 103 N.E. 20,54 Ind.App. 416
• Parties: LYONS, ADMINISTRATRIX, v. CITY OF NEW ALBANY
• Court: Indiana Appellate Court

103 N.E. 20

54 Ind.App. 416

LYONS, ADMINISTRATRIX, v. CITY OF NEW ALBANY

No. 8,044

Court of Appeals of Indiana

November 5, 1913

From Scott Circuit Court; William C. Utz, Special Judge.

Action by Mollie Lyons, administratrix of the estate of Harry Lyons deceased, against the city of New Albany. From a judgment for defendant, the plaintiff appeals.

Reversed.

George H. Hester and Paris & Trusty, for appellant.

Charles W. Schindler and Korbly & New, for appellee.

HOTTEL P. J. Lairy, C. J., Caldwell, Ibach and Felt, JJ., concur. Shea, J., not participating.

OPINION

HOTTEL, P. J.

On November 7, 1906, Harry Lyons, while in the employ of appellee, lost his life by coming in contact with an electric light wire. Mollie Lyons, the widow of Harry, as administratrix of his estate, brought this action against appellee, and the "United Gas and Electric Company" for damages for said death, charging that it was caused by the carelessness and negligence of appellee and said United Gas and Electric Company. Before trial appellant dismissed her case as to said company.

The complaint was in two paragraphs, a demurrer to each of which was overruled. The averments common to both paragraphs are in substance as follows: Appellee, city of New Albany, has and maintains what is known as the "Gamewell" fire alarm system. From the central station of this system, wires are run to various parts of the city, connecting with numerous signal stations by means of which alarm signals are sent in from the various boxes to the fire department headquarters and to the several engine and reel houses maintained by such city. In installing this system the appellee, instead of using separate poles of its own upon which to place its wires, made an arrangement with the United Gas and Electric Company whereby it placed its wires on poles belonging to such electric light company. These alarm wires were generally located at or near the top of the poles and above the primary or high voltage wires of the light company, so that, in repairing or doing work of any kind in connection with the fire alarm wires, it becomes necessary for appellee's employes who did such work, to climb the pole upon which said high voltage electric wires were located, and pass through or over them, and the cross arms to which they were attached. The fire alarm wires consisted of a single wire running from the central station along said poles to the signal station and thence to the ground, so that the earth formed the return circuit for such alarm system. The primary light wires were insulated, but they carried a voltage sufficient to produce an are light of more than 2,000 candle power in each of the several hundred electric arc lamps then in use by said city, and this voltage was so high that its escape was not prevented by the insulation of such wires, and any contact with such primary wire by a person who at the time was also in contact with an alarm wire which passed to the earth would cause a deadly circuit of electricity to pass from such primary wire through the body of such person to the earth. For this reason work in connection with said fire alarm wires was extremely hazardous and dangerous.

The averments of negligence in the first paragraph omitting unnecessary detail, are in substance as follows: Appellee carelessly and negligently employed the decedent as its electrician when it knew him to be entirely without knowledge or experience in such work and wholly ignorant of the character and nature of its dangers, and then negligently ordered him to a place of work where he was required to come in contact with, or in close proximity to, said high voltage primary electric light wires, without giving him any notice or warning of the dangers connected with such work or any directions or instructions as to the manner of avoiding such dangers. The defendant United Gas and Electric Company, at said times, had and maintained, on one of the streets of said city, an apparatus by means of which the current of electricity could be switched off of the wires attached to the poles on which said decedent was directed to work and they would thereby be rendered safe. Defendants each negligently and carelessly failed to make use of said apparatus or to turn off said current from said wires with which said decedent was required to work, but the same were then and there negligently and carelessly charged with said deadly current of electricity as aforesaid. In obedience to his said orders and direction, decedent climbed said pole and passed between the primary wires of said electric company which at the time carried said dangerous voltage of electricity, and without any knowledge of the dangers connected therewith, and while he was in contact with said primary wires, in the course of his said employment, he necessarily came in contact with the said fire alarm wire of said city, which he was then and there required to handle, and which was then and there grounded, and 2,280 volts of electricity were caused to and did pass through the decedent's body, by reason of which he was instantly killed.

The second paragraph of complaint differs from the first in that it contains additional averments to the effect that the insulation on the primary light wires had been carelessly and negligently allowed by the light company to become worn off or broken at a point near said pole and cross arm where the employes of the city had to work, which fact was well known to both defendants and the agents and servants of each, or might have been so known by the exercise of reasonable care, and was unknown to decedent.

The only answer to the complaint was a general denial. The case was submitted to a jury for trial, and at the close of appellant's evidence, a motion for a peremptory instruction in appellee's favor was sustained, and the jury instructed to return a verdict for appellee. A motion for new trial was overruled. Exceptions to said several rulings were properly saved and the question of their correctness is presented in different form by the several errors assigned and relied on in this appeal. These rulings and the assigned errors predicated thereon in their last analysis present one and the same question, viz., under the issues and the evidence, Did the law authorize the trial court to withdraw the case from the jury by a peremptory instruction in appellee's favor? It is well settled by the decisions of both the Supreme Court and this court that such an instruction should be given by the trial court only when there is a total absence of evidence given upon some essential issue, or where there is no conflict and the evidence is susceptible of but one inference, and that inference is favorable to the party asking the instruction. Cleveland, etc., R. Co. v. Gossett (1909), 172 Ind. 525, 537, 87 N.E. 723; Diamond Block Coal Co. v. Cuthbertson (1906), 166 Ind. 290, 306, 76 N.E. 1060; Annadall v. Union Cement, etc., Co. (1905), 165 Ind. 110, 111, 112, 74 N.E. 893; Cincinnati, etc., R. Co. v. Darling (1891), 130 Ind. 376, 380, 30 N.E. 416; Columbian Enameling Co. v. Burke (1906), 37 Ind.App. 518, 525, 526, 77 N.E. 409, 117 Am. St. 337; Hamilton v. Hanneman (1898), 20 Ind.App. 16, 21, 50 N.E. 43. As further directions to the trial court upon this subject the Supreme Court and this court have said: "Upon a motion for a peremptory instruction, the court is bound to accept as true all facts which the evidence tends to prove, and to draw, against the party requesting such instruction, all inferences which the jury might reasonably draw, and, in case of conflict in the evidence, to consider only that favorable to the party against whom the instruction is asked, that favorable to the other party being treated as withdrawn." Roberts v. Terre Haute Electric Co. (1905), 37 Ind.App. 664, 671, 76 N.E. 323, 76 N.E. 895. See, also, Hall v. Terre Haute Electric Co. (1906), 38 Ind.App. 43, 45, 76 N.E. 334; Farmers' Nat. Bank v. Coyner (1909), 44 Ind.App. 335, 339, 88 N.E. 856; Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 425, 73, 73 N.E. 899 N.E. 899; Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 388, 389, 14 N.E. 228; Pittsburgh, etc., R. Co. v. Cozatt (1907), 39 Ind.App. 682, 690, 79 N.E. 534. However, "If the established facts are such that no inference of liability can be drawn" therefrom, a peremptory instruction is proper. Goode v. Elwood Lodge, etc. (1903), 160 Ind. 251, 256, 66 N.E. 742; Menaugh v. Bedford Belt R. Co. (1901), 157 Ind. 20, 24, 60 N.E. 694; Diezi v. G. H. Hammond Co. (1901), 156 Ind. 583, 588, 60 N.E. 353; Oleson v. Lake Shore, etc., R. Co. (1895), 143 Ind. 405, 409, 42 N.E. 736, 32 L.R.A. 149; Faris v. Hoberg (1892), 134 Ind. 269, 273, 33 N.E. 1028, 39 Am. St. 261; Williams v. Resener (1900), 25 Ind.App. 132, 133, 56 N.E. 857. It follows from the authorities cited, and others that might be cited, that the trial court should not have sustained such motion if, after eliminating all evidence favorable to appellee, there was any evidence remaining which, with its legitimate inferences, would have been sufficient to support each of the facts essential to a verdict for appellant if one had been returned in her favor. The law as above announced is in effect conceded by appellee, but it insists that appellant has wholly failed to prove the cause of action alleged in her complaint.

It is suggested by appellant in her brief that the trial court gave as its reasons for sustaining said motion, that the evidence showed: (1) that the decedent met his death as a result of his own contributory negligence; (2) that decedent's death resulted from risks incident to his employment assumed by him; (3) that appellee was not shown to have been guilty of any negligence proximately causing decedent's death. The...