Neal v. Home Builders, Inc.
| Citation | 232 Ind. 160,111 N.E.2d 713 |
| Decision Date | 22 April 1953 |
| Docket Number | No. 29027,29027 |
| Parties | NEAL v. HOME BUILDERS, Inc. et al. |
| Court | Supreme Court of Indiana |
Owen W. Crumpacker, Crumpacker & Friedrich, Hammond, for appellant.
Glenn D. Peters, Hammond, Peters & Highland, Hammond, of counsel, for appellees.
Michael L. Fansler, Irving M. Fauvre, Howard S. Young, Jr., David L. Chambers, Jr., and Fansler, Fauvre, Young & Chambers, Indianapolis, amici curiae.
As appellant points out in his petition for rehearing, an amendment by interlineation to the amended complaint was inadvertently left out of subparagraph (a) of numerical paragraph 8 of that part of the complaint appearing in the opinion. This paragraph with the interlineations as they appear on p. 13 of appellant's brief is as follows:
'(a) In failing to use reasonable care in barricading the entrance of the semi-completed dwelling house as herein described when they knew, or in the exercise of reasonable care should have known, that children of immature years and more particularly the children of plaintiff's decedent were attracted to the semi-completed dwelling house for the purpose of play and sport, and were at the time and place of injury to plaintiff's decedent accustomed to using the semi-completed dwelling house as a place of sport and play,--said defendants and each of them knew, or in the exercise of reasonable care, could have known, that the said semi-completed house was in fact inherently dangerous to such children by reason of the many pitfalls and opportunities for them to climb and fall, and otherwise injure themselves without knowing of the danger because of their immature years.'
We were fully aware of this amendment at all times during the consideration of the case. The addition of the italicized words above does not change the specific act of negligence charged.
On page 284 of the opinion in 111 N.E.2d 280, we said:
'The sole act of negligence here charged is: The failure of appellees under the circumstances as set out in the amended complaint to 'barricade the entrance to the semi-completed dwelling house' described in said complaint.' (Italics added.)
The circumstances referred to above included all those recited in the complaint as finally amended before trial.
Appellant admits in his petition for rehearing that a stepladder is not 'a dangerous instrumentality' or an 'attractive nuisance' and affirms the position taken by him in his brief and in oral argument, that neither a...
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...particular condition. 65 C.J.S. Negligence § 28, p. 454. In Neal, Admr. v. Home Builders, Inc., 1953, 232 Ind. 160, 111 N.E.2d 280, 290, 111 N.E.2d 713, a statement of law similar to that of the Restatement Rule was referred to as the attractive nuisance rule as extended in some jurisdictio......
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