Pfisterer v. Grisham, 20050

• Decision Date: 10 September 1965
• Docket Number: No. 20050,No. 2,20050,2
• Citation: 210 N.E.2d 75,137 Ind.App. 565
• Parties: Sandra PFISTERER, by her next friend Charles Pfisterer, Appellant, v. Jesse GRISHAM, Margie Grisham, d/b/a Perdido Lake, Appellees
• Court: Indiana Appellate Court

Page 75

210 N.E.2d 75

137 Ind.App. 565

Sandra PFISTERER, by her next friend Charles Pfisterer Appellant, v. Jesse GRISHAM, Margie Grisham, d/b/a Perdido Lake Appellees.

No. 20050.

Appellate Court of Indiana, Division No. 2.

Sept. 10, 1965.

Concurring Opinion Sept. 17, 1965.

Rehearing Denied Sept. 29, 1965.

[137 INDAPP 566]

Lockyear & Lockyear, Theodore, Lockyear, Thomas Lockyear, Evansville, for appellant.

Weyerbacher, Lacey & Rideout, Boonville, Olsen & Niederhaus, Evansville, for appellees.

BIERLY, Chief Justice.

Defendants, Jesse Grisham and Margie Grisham, d/b/a Perdido Lake, maintained a public lake and amusement area in Warrick County, Indiana. One of the popular attractions thereon was a slide approximately eighteen (18) to twenty (20) feet high at the head of the slide, and extending approximately fifteen (15) to eighteen (18) feet into the lake. To use the slide the invitee ascended a ladder or stairway to reach the top of the slide.

Plaintiff, Sandra Pfisterer, age 13, as an invitee, visited Perdido Lake on July 4, 1960, and proceeding, with a girl companion, to use said slide by climbing to the top thereof, thence going down the slide into the lake. Appellant, while sliding down the slide into the lake, sustained an injury to her left index finger which was cut off down to the third joint.

Appellant, in her complaint, charged that the injury resulted from the careless and negligent acts of the appellees in that appellees negligently and carelessly designed, built, constructed and erected a slide with metal bracing and posts which extended to the edge of the slide on both sides, and which were of sharp metal and made the slide unfit for the purpose of sliding into said lake; that they were negligent and careless in failing and neglecting to warn persons using the slide that the metal braces were in close proximity [137 INDAPP 567] to the sliding portion of the slide; that they failed and neglected to insulate the braces in order to prevent injury to persons using the slide; that they failed and neglected to prevent persons from using the slide when the same was unfit for use and the appellees knew, or in the exercise of reasonable care, should have known, that the slide was unfit for use; that they failed to inspect the slide for dangerous conditions; and that they failed to maintain the slide in a reasonably safe condition.

The appellees filed their answer in compliance with Rule 1-3 of the Supreme Court.

The cause was tried to a jury which rendered a verdict for appellees and against appellant and, thereafter, a consistent judgment was entered thereon.

Appellant's sole assignment of errors is that the trial court erred in overruling appellant's motion for a new trial. Under this assignment of errors, appellant sets forth ten specifications of error, all of which concern the giving of certain appellees' instructions over the objections of appellant.

The salient facts are that on or about the 4th of July, 1960, the appellees owned and operated Perdido Lake; and that the general public was invited to use the lake and amusement facilities located thereon. The slide, which allegedly caused the injuries, was erected on July 1, 1960.

Appellant testified that in July of 1960, she went to Perdido Lake with her mother, father and sister; and that this was the first time that she had ever visited there. Soon after arriving at the lake, appellant and a girl friend decided to go swimming but the girl friend wanted first to go down the 'slicky-slide'. Because the slide was a very popular attaraction, they had to [137 INDAPP 568] stand in line awaiting their turn. A lifeguard was on duty but he did not tell them how to use the slide. There were no signs informing the users how to use it or to warn of any danger. Appellant had never used the slide before this time, and after climbing the ladder to reach the top, she waited for the person in front of her to go down and get out of her way. Appellant sat on the slide with her legs extended in front of her and began her descent in a normal manner. After negotiating a hump near the top, she lost her balance when near the middle and in so doing grabbed the left side of the slide and thence continued to the bottom and into the water. Perceiving that she was dizzy, she treaded water to get to the other side of the slide and thence saw blood dripping down the front of her swim suit, also down her left leg, and then discovered that a portion of her left finger was missing. In her testimony appellant was unable to specify the place or places where she grabbed the slide after she lost her balance.

The record evidence disclosed that a search was instituted to locate the missing portion of appellant's finger, but it was not found nor was there any trace of blood or flesh visible on the slide. Appellant testified that she did not strike anything in the water which could have caused the injury.

Appellant contends specifically that the trial court committed reversible error in giving to the jury appellees' Instructions Nos. 10, 13 and 19. As we are of the opinion that we are required to reverse on the basis of the giving of Instruction No. 19, we will comment only briefly on Instructions Nos. 10 and 13.

Appellees' Instruction No. 10 charged the jury that if they find from a fair preponderance of the evidence [137 INDAPP 569] that the appellees exercised reasonable care in providing for the safety of the appellant, while upon the premises, then their verdict should be for the appellees.

Appellant argues that Instruction No. 10 allows the jury to find for the appellees if they (appellees) exercised reasonable care in the 'overall safety of the premises.'

While we do not feel that Instruction No. 10 was so defective as to mislead the jury and thereby constitute prejudicial error, it is apparent that the instruction was too broad and general and should have been phrased more specifically.

Appellees' Instruction No. 13 nstructed the jury, in substance, that if they find that the appellees acted as reasonable persons in the designing, construction and installation of the slide, then the appellees would not be liable for appellant's injury and the jury should find for the appellees.

Appellant objected to the instruction for the reason that the instruction is mandatory and allows the jury to find for the appellees in the designing, construction and installation of the slide, thereby allowing the jury to eliminate the other alleged acts of negligence.

We are of the opinion that appellant's argument is untenable. We agree with appellees in that all the alleged acts of negligence relate back to the first allegation of negligent design, construction and installation of the slide.

Appellees' Instruction No. 19, which was given, instructed the jury that '* * * if you find that the plaintiff therein knew, or in the exercise of reasonable care, should have known that the use of the defendants' slide, as alleged in her complaint, could result in injury to herself and you further find that she voluntarily [137 INDAPP 570] assumed the risk of such injury, then the plaintiff should not recover and your verdict should be for the defendants.'

Indiana decisions attempt to draw a distinction between assumed risk and incurred risk, depending upon whether there is a contractual relationship between the parties involved. However, it appears that the underlying principles in either case are the same. In any event, we are of the opinion that an instruction on assumed or incurred risk under the facts of the case at bar was erroneous.

In Pittsburgh, etc., R. Co., v. Hoffman (1914), 57 Ind.App. 431, 107 N.E. 315, this court held:

'In a case where the principle of assumption of risk applies, the person subjected to such principle is held to assume the risk incident to the enterprise, when properly equipped and conducted, and, in addition, he assumes all risks growing out of defects or dangers of which he has either actual or constructive knowledge, and which he understands and appreciates, although such additional risks have their origin in the negligence of the one who in the particular matter sustains to him the relation of master or other contractual relation. * * *.

'* * *. It may be granted that, in relations other than contractual, there is applied in negligence cases a principle very similar in its nature to the principle of the assumption of risk. Thus, where one voluntarily uses a defective bridge, street, highway, or sidewalk, with actual or constructive knowledge of its condition, and as a consequence of such use suffers an injury, no term of universal application is used to designate the principle involved which in such cases may defeat the right to recover for such injury. The hazard encountered under such circumstances is referred to by the courts as an incurred risk, and sometimes as an assumed risk, while the fact that one so encounters it is sometimes called taking the risk. In all such cases, application of the maxim volenti non fit injuria,[137 INDAPP 571] 'that to which a person consents is not deemed in law an injury,' may defeat a recovery. (Citing cases).'

See also: National, etc., Vehicle Co. v. Kellum (1916), 184 Ind. 457, 109 N.E. 196; Indiana, etc., Oil Co. v. O'Brien (1903), 160 Ind. 226, 65 N.E. 918, 66 N.E. 742; Ridgway v. Yenny; Ridgway v. Lombardo (1944), 223 Ind. 16, 57 N.E.2d 581.

In light of the principles of law deductible from the foregoing cases, it appears, and we conclude, that the doctrine of assumed or incurred risk may, under certain circumstances, defeat an action where the plaintiff voluntarily assumes a danger or risk of which he possesses actual or constructive knowledge. This principle was enunciated in Murphy v. Steeplechase Amusement Co. (1929), 250 N.Y. 479, 166 N.E. 173, wherein the plaintiff instituted an action for personal injuries resulting from a fall at an amusement park while riding on an attraction known as 'The...