Northern Indiana Public Service Co. v. McClure
| Decision Date | 22 January 1940 |
| Docket Number | 15970. |
| Citation | 24 N.E.2d 788,108 Ind.App. 253 |
| Parties | NORTHERN INDIANA PUBLIC SERVICE CO. v. McCLURE. |
| Court | Indiana Appellate Court |
Crumpacker & Friedrich, of Hammond, and Ernest M. Hawkins, of Fowler, for appellant.
Fraser & Isham, of Fowler, and S. C. Dwyer and J. M. Stinson both of Hammond, for appellee.
Appellee brought this action against appellant to recover damages for personal injuries alleged to have been suffered by him as the result of negligent conduct on the part of appellant, through its servants and employees, in allowing poisonous gas to escape from certain appliances while adjustments were being made thereon, and which appliances were located in the basement of an apartment building occupied in part by appellee as a family residence; it being averred in the complaint that the escaping gas caused appellee to be asphyxiated.
The complaint was answered by a general denial. The cause was tried to a jury, and there was a verdict for appellee in the sum of $16,000. Appellant duly filed its motion for a new trial, which was overruled by the court and an exception to said ruling reserved. Judgment on the verdict was rendered and this appeal thereafter perfected; the sole error assigned being the claimed error in the overruling of said motion.
The causes assigned for a new trial and presented here are that the verdict of the jury is not sustained by sufficient evidence; that such verdict is contrary to law; errors of law in admitting evidence and in excluding offered testimony error in the giving and in the refusal to give each of certain designated instructions.
It appears from the evidence that the kitchen in the home occupied by appellee was located on the first floor and directly over the basement of the apartment building wherein was situate the appliances upon which adjustments were being made by the servants of appellant, and from which it is claimed the gas asphyxiating appellee was allowed to escape. On October 4, 1932, appellee, while eating his breakfast in this kitchen, suddenly became unable to talk coherently, and suffered a collapse, which left him in an unconscious condition. He was assisted from the kitchen to the bedroom by his wife; a physician was called, who, after an examination made a tentative diagnosis of carbon monoxide poisoning. An inhalator furnished by appellant was used while this physician was there, and a slight improvement was noted, but appellee continued in a practically unconscious condition for some time. On the afternoon of this same day another physician, representing appellant, called at the home examined appellee, and two days later appellee was taken to the hospital upon the advice of this physician, where he (appellee) remained for approximately two weeks. On October 8, 1932, a brother of appellee conferred with a third physician, and requested that he have a consultation with the physician upon whose advice appellee had been transferred to the hospital. Thereupon, this third physician called the other one by telephone, informed him of the request, and it was arranged that he, said third physician, should go ahead on that day and make his own examination of appellee, the other physician not being able to be present at that particular time. This third physician then went to the hospital, and, after taking the history of the case from the wife of appellee, made an examination of appellee for the purpose of diagnosing his ailment. Later, on the same day, he called the other physician by 'phone, and prescribed as treatment that the patient be given "arsenical and potassium iodide," a recognized treatment for syphilis. This physician did not see the patient again until after he had been removed from the hospital to his home, when he became his attending physician, and continued a treatment of potassium iodide and mercury over "a period of five to six weeks," when such treatment was discontinued. In the "latter part of November, 1932" he took two Wassermann tests of the patient's blood, such tests being...
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