Northern Indiana Public Service Co. v. Robinson

• Decision Date: 07 February 1939
• Docket Number: 15379.
• Citation: 18 N.E.2d 933,106 Ind.App. 210
• Parties: NORTHERN INDIANA PUBLIC SERVICE CO. v. ROBINSON.
• Court: Indiana Appellate Court

18 N.E.2d 933

106 Ind.App. 210

NORTHERN INDIANA PUBLIC SERVICE CO. v. ROBINSON.

No. 15379.

Appellate Court of Indiana, in Banc.

February 7, 1939

Crumpacker & Friedrich, of Hammond, and H. W. Worden, of La Porte for appellant.

Moore Long & Johnson, of Gary, Kelly & Ryan, of Valparaiso and Darrow Rowley & Shields, of La Porte, for appellee.

STEVENSON Presiding Judge.

This appeal is from a judgment of the Porter Circuit Court, which judgment was entered on the 16th day of October 1933, on a verdict of a jury awarding the appellee the sum of $10,000 for damages against the appellant.

The case was tried on an amended complaint in three paragraphs. The complaint alleged negligence generally in the construction and maintenance of a dam across a ravine near the Village of Kingsbury in LaPorte County, Indiana. A public highway crossed this ravine and the dam and the grade on which the highway crossed were part of the same structure which operated to impound the water in the mill pond immediately to the north of said embankment.

That due to such negligence and failure on the part of the appellant company to properly construct and maintain said dam, the plaintiff, while traveling over said highway in a Ford touring car, was caught by a surge of water from the mill pond when the dam and roadway on which he was traveling gave way and washed out by the pressure of the water in the pond. That the appellee was caught in the current and instantly immersed and buried beneath the ice and mud and swiftly running water from the pond. That he and his companions were washed down the stream for some distance where he grasped and clung to a tree top from which he was able to swim to the shore. That by reason of said negligence he suffered injury to his spine and back, his nervous system was shattered and that he has been caused to suffer great physical pain and anguish.

The case was submitted to the jury on two charges alone; first, failure to raise the flood gates, and second, negligence in permitting a dangerous amount of water to accumulate in the pond. The jury upon a trial of the issues returned a verdict in favor of the appellee and against the appellant in the sum of $10,000. Judgment was entered upon the verdict after overruling the motion for new trial.

The only error relied on by the appellant is the alleged error in overruling appellant's motion for new trial. Specification 22 of the motion for new trial is to the effect that the damages are excessive. Specification 21 of the motion for new trial charges error in the giving of the instruction on the measure of damages. Since excessive damages and an erroneous instruction covering the measure of damages are both assigned as grounds for reversal, we will consider the correctness of the instruction on the measure of damages first. This instruction is as follows:

"If you find from the evidence and the instructions of the court that the plaintiff is entitled to recover in this action, then, in determining the amount of damages the plaintiff is entitled to recover if any. it is your duty to consider all the facts disclosed by the evidence relevant thereto and to award plaintiff such damages as will justly compensate him for the injury or injuries, if any, he has received resulting from the accident in controversy. You should, in fixing plaintiff's damages, if any, consider the character of plaintiff's injuries, whether they are permanent or only temporary in their character; his loss of time or earnings, if any he has sustained or will probably sustain on account of such injuries, if any; impairment of his ability to pursue his calling or business, if any has been shown by the evidence; any mental or physical pain and suffering he may have suffered, if any; his inability, if any, to enjoy life in the manner he was accustomed to on account of his said injuries; his age and expectancy of life, if his injuries are permanent; and in your deliberation award him such damages, as, under the evidence in this case, will fairly and honestly compensate him for the injury he sustained by reason of the accident alleged in plaintiff's complaint, not, however, exceeding the amount of $25,000.00 claimed in plaintiff's complaint.

"The burden of proof on the question or issue of damages is upon the plaintiff, and in the event you find in his favor you can allow him no damages or consider no element of damages in his favor unless it is sustained by proof by a fair preponderance of all the evidence upon that question."

The appellant contends first that this instruction is erroneous for the reason that it instructs the jury that they may consider as an element of damage "his loss of time or earnings, if any he has sustained or will probably sustain on account of injuries." It is a well established rule of law that "in an action to recover damages, all damages which actually and proximately result from the wrongful act in question may be recovered, but in a case where the effect of the injury complained of may result in loss of time or interfere with the business, work, trade, or profession of the injured party, thereby resulting in damages to him, such damages are considered as special and provable only when specifically alleged in the complaint." Cleveland, etc. R. Co. v. Case, 174 Ind. 369, 91 N.E. 238, 241.

The complaint in this case alleges that "plaintiff was at the time of his injury in a healthy condition, a man at the age of 32 years and skilled as a mechanic, and was earning $50 per week and that since said injury, plaintiff has been unable to work or labor as he had theretofore done." In another paragraph the complaint alleges "that plaintiff is permanently injured and unable to work; that prior to said injury he was a man, able-bodied and capable of earning large sums of money, to-wit $2500.00."

It may be that such allegations are sufficient in the absence of a motion to make more specific to entitle the appellee to introduce evidence tending to show loss of time and earnings but there is no...