Neal v. Home Builders, Inc.

Decision Date23 March 1953
Docket NumberNo. 29027,29027
Citation232 Ind. 160,111 N.E.2d 280
PartiesNEAL v. HOME BUILDERS, Inc. et al.
CourtIndiana Supreme Court

Owen W. Crumpacker and Crumpacker & Friedrich, Hammond, for appellant.

Fansler, Fauvre, Young & Chambers, Michael L. Fransler, Irving M. Fauvre, Howard S. Young, Jr., and David L. Chambers, Jr., Indianapolis, amicus curiae.

Glenn D. Peters and G. Edward McHie, Hammond, Peters & Highland, Hammond, of counsel, for appellee.


This action was commenced by the filing of a complaint in one paragraph by the administrator of the estate of Shirley E. Neal, deceased, to recover damages resulting from her death caused by the alleged negligence of appellees.

The complaint was amended and a demurrer thereto was sustained for want of facts sufficient to state a cause of action. Plaintiff (appellant) refused to plead over and judgment was rendered against him, from which he appealed. The sustaining of the demurrer is the sole error assigned.

The relevant parts of the amended complaint are as follows:

'(5) On June 10th, 1946 the defendants were engaged in the construction of a story and a half frame dwelling house located on Ontario Street near the intersection of said street with 173rd Street in the City of Hammond. Said dwelling house was being erected on the east side of Ontario Street and was the second dwelling house located on the east side of Ontario Street, north of 173rd Street. On June 10th, 1946 said dwelling house was in a partial stage of completion in that the foundation has been completed, the side walls erected and the roof placed upon the building. The doors and windows had not yet been installed. No flooring had been placed upon the joists or rafters constructed at or about the so-called street level, nor had any flooring been placed upon the rafters and joists which constituted the supporing structure or the so-called upstairs or second floor of the frame building. On the north side of the building and approximately at street leval there was an opening in the structure approximately 36"' wide and 90"' in height, which opening was apparently constructed for the purpose of installing a door or entry way to the structure. On June 10th, 1946 no barricades or other obstructions were placed in the opening for the purpose of prohibiting the entry into the structure by children or other persons in the immediate locality. On the inside of the structure and within a few feet of the opening herein mentioned the defendants or either of them acting through their agents and or employees had caused to be placed a wooden stepladder, the lower portions of which rested on the joists or rafters at ground level and the upper extremities rested upon or reached the joists or rafters which were erected or constructed for the flooring of the so-called second floor.

'(6) The conditions above described which existed on June 10th, 1946 had existed for several days prior thereto. On June 10th and for several days prior thereto, various children in the neighborhood, including the children of the decedent mentioned above, were accustomed to playing in and about the dwelling house and surrounding neighborhood. These children had been accustomed to making entry into the building through the opening described and had been playing in and about the stepladder and joists herein mentioned. By virtue of the fact that the frame building was in the early stages of completion, and by virtue of the further fact that no steps had been taken to prevent small and immature children from gaining entrace into the structure, the dewelling house had become on June 10th and for several days prior thereto a peculiarly attractive location for immature children in the neighborhood to sport and play. This condition was and had been fully known to the defendants and each of them in that it was apparent to the carpenters and other tradesmen working as employees of the defendants in and about the premises. Plaintiff believes and states the fact to be that the conditions described herein were personally known by the defendant Francis L. Wilson who was in the habit of making daily inspection of the dwelling house under construction, in connection with his supervisory duties.

'(7) On or about Monday, June 10th at approximately 9 o'clock in the morning the three children of the defendant entered the dwelling house through the opening on the north side of the structure for the purpose of sport and play as was their habit. Anthony and Clarence climbed the stepladder to the upper joists and rafters. John, the youngest, became caught, pinioned upon the stepladder as he attempted to follow his older brothers up the stepladder to the so-called second story. Being unable to extricate himself and becoming frightened he uttered several screams. The screams of the child were heard by the decedent while she was engaged in her household duties in her home directly across the street from the dwelling house being constructed. Recognizing the voice of her youngest son and realizing that the child was in peril, the decedent left her home, ran across the street and entered the structure. In attempting to extricate the child from his position of peril on the stepladder and being under emotional stress because of the peril of the child, the plaintiff's decedent lost her footing upon the joists and fell astraddle one of them causing severe bodily injury to plaintiff's decedent from which she died on June 27th, 1946. At the time of her injury plaintiff's decedent was seven months pregnant with child.

'(8) The sole and proximate cause of the death of plaintiff's decedent was the negligence of the defendants and or each of them acting through their agents and employees, in the following particulars:

'(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 attacted 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.

'(9) Prior to her injury and death, as hereinabove mentioned, the plaintiff's decedent was a well and healthy woman twenty-nine years of age. Plaintiff and the children of plaintiff and the decedent were dependent upon the decedent for the performance of all the household duties required in maintaining the family and in nursing and raising the children. As a result of said negligence plaintiff and the remaining heirs at law of said Shirley E. Neal suffered great damage in that they were deprived of the case, services and attention of said Shirley E. Neal. Plaintiff also suffered further damage in that he was required to expend moneys for the expenses of the last illness of the decedent and for her burial. The damage so suffered was and is greatly in excess of Ten Thousand ($10,000.00) Dollars.'

If appellant is to recover under the allegations of his complaint, it must be done under the 'rescue doctrine.' This rule is clearly stated in 65 C.J.S., Negligence, § 63, p. 554:

'One who has, through his negligence, endangered the safety of another may be held liable for injuries sustained by a third person in attempting to save such other from injury.'

It has been applied in the jurisdictions which have adopted it only where the situation which invites rescue is created by the tortious act of the defendant or by one for whom he is responsible. 65 C.J.S., Negligence, § 124, p. 738.

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.

Actionable negligence consists of (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant. Harris v. Indiana General Service Co., 1934, 206 Ind. 351, 456, 189 N.E. 410; Pontiac-Chicago M. E. Co. v. Cassons & Son, 1941, 109 Ind.App. 248, 254, 34 N.E.2d 171.

The absence of any one of these elements renders a complaint bad for insufficient facts. Elder, Receiver v. Rutledge, Adm'x 1940, 217 Ind. 459, 464, 27 N.E.2d 358; Pontiac-Chicago M. E. Co. v. Cassons & Son, supra.

The second and third elements of actionable negligence are not in dispute, hence the sole question is: Did the appellees owe a legal duty to the children of the deceased, Shirley E. Neal, to put something across the doorway opening in the semi-completed building to keep them out--off the premises?

Appellant contends that greater care is required in dealing with children of tender years than with older persons who have reached the age of discretion and relies upon Penso, by next Friend v. McCormick, 1890, 125 Ind. 116, 25 N.E. 156, 9 L.R.A. 313, 21 Am.St.Rep. 211, and Drew v. Lett, 1932, 95 Ind.App. 89, 182 N.E. 547, for support.

In this state the only degree of care required is always the care which an ordinarily prudent person would exercise under the same or similar circumstances. Jones v. Cary, 1941, 219 Ind. 268, 279, 37 N.E.2d 944; Fields v. Hahn, 1945, 115 Ind.App. 365, 375, 57 N.E.2d 955.

The rule which this court recognizes as the law in Indiana is ably stated in Thompson v. Ashba, 1951, 122 Ind.App. 58, 61, 102 N.E.2d 519, 521, as follows:

'There are no degrees of negligence in the State of Indiana, neither are there degrees of care. The law upon this subject had been stated as follows:

"If there can be no degrees of negligence, it must follow that there can be no degrees of duty. Duty is an absolute term. The law requires nothing more than duty; it will...

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