Pierce v. Walters

• Decision Date: 08 June 1972
• Docket Number: No. 272A66,272A66
• Citation: 283 N.E.2d 560,152 Ind.App. 321
• Parties: Billy E. PIERCE, Jr., By his next friend, Billy Pierce, Plaintiff-Appellant, v. Thomas D. WALTERS, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 560

283 N.E.2d 560

152 Ind.App. 321

Billy E. PIERCE, Jr., By his next friend, Billy Pierce Plaintiff-Appellant, v. Thomas D. WALTERS, Defendant-Appellee.

No. 272A66.

Court of Appeals of Indiana, First District.

June 8, 1972.

James H. Kelly, Taylor & Kelly, Martinsville, for appellant.

Lawrence McTurnan, Thomas A. Withrow, Bredell, Martin & McTurnan, Indianapolis, William H. Wehrle, Martinsville, for appellee.

LOWDERMILK, Judge.

This case comes to us for review on one issue only, that issue being 'Is there any genuine issue as to material fact which would entitle plaintiff-appellant to trial by jury?'

Plaintiff-appellant at the time of the accident complained of was a ten year old boy who, with his father, went to visit his grandmother and step-grandfather, Thomas D. Walters, the defendant-appellee herein, on Mr. Walters' farm.

The boy's father, on the day in question, was working on the farm for the boy's grandfather. The father drove a truck down a road near the barn and a pond where it would be used in building a fence to close the pond off (we assume to keep livestock out of the pond and from muddying up the waters, as is the custom or modern farm ponds).

This was the 5th day of July, 1970, and at the time the pond dam had grown up with grass and weeks from three to six feet tall and it had not been mowed that season. The pond dam was approximately sixty feet in length; the pond was practically full of water and about eight feet deep at the time.

There were some fifteen grandchildren of the defendant-appellee on the premises, with his permission, including the plaintiff-appellant, Billy E. Pierce, Jr. The record is not clear as to just how many of these children were down at the spillway of the dam when plaintiff-appellant Billy E. Pierce, Jr.'s father admonished him to get off the spillway and stay away from that part of the farm that day. Upon being admonished Billy, Jr. immediately left the spillway and the father went about his work. The evidence is that the defendant-appellee, grandfather, overheard this admonishment of Billy, Jr. It was after this that the grandfather drove his pick up truck across the dam and spillway, for the first time in 1970, through the grass and high weeds, leaving the grass and high weeds mashed down where he had driven.

During the course of the morning the fence was built next to the highway, enclosing an area around the pond, and no mention was made of Billy, Jr.'s whereabouts during that time.

The fence was completed and the defendant-appellee had only one way to exit with his pick up truck and that was to drive again across the levee and spillway where he had entered that morning and go to a gate on the other side thereof.

At the time he proceeded toward the spillway plaintiff-appellant's father started the motor on a large truck and there was also a tractor operating, all within one hundred feet of the dam and spillway, emitting enough noise that a person on the dam or spillway would not heard the movement or the quiet operation of a pick up's motor. Sometime while the fence was being built the plaintiff-appellant disobeyed the order of his father to stay away from the dam and had come back into the area, unknown to his father or the defendant-appellee. He was hunting frogs to shoot with a rifle.

The record is clear that plaintiff-appellant was hiding from his father in the tall grass and weeds at the time defendant-appellee drove back across the spillway and dam and ran over him. The record is silent as to when he began to hide, but knowing the habits of children, it is reasonable for us to assume that he started to hide from his father when the father started the large truck and was en route back to the house after the completion of the fence.

Depositions and interrogatories were taken and are a part of the record. From a reading of these we find that other of the fifteen children were in the yard, some were in the barn and some in the cornfield, all on the same farm.

It was on the above set of facts, including the complaint and the discovery, that defendant-appellee filed his motion for summary judgment, which was granted by the court.

We will now determine this appeal and answer the question presented in the first paragraph of this opinion.

In determining this question, our attention is first attracted to page six of the defendant-appellee's brief, wherein he states:

'. . . The only question presented is whether defendant should have known the plaintiff was present. Obviously, had he known of plaintiff's presence, the grandfather would not have driven his truck over him. ...