Town of Kirklin v. Everman

• Decision Date: 08 October 1940
• Docket Number: No. 27437.,27437.
• Citation: 28 N.E.2d 73,217 Ind. 683
• Parties: TOWN OF KIRKLIN v. EVERMAN. MUNICIPAL WATER WORKS CORPORATION OF KIRKLIN v. SAME (two cases).
• Court: Indiana Supreme Court

217 Ind. 683

28 N.E.2d 73

TOWN OF KIRKLIN

v.EVERMAN.

MUNICIPAL WATER WORKS CORPORATION OF KIRKLIN

v.SAME (two cases).

No. 27437.

Supreme Court of Indiana.

June 28, 1940.

Subsequent Opinion Oct. 8, 1940.

See 29 N.E.2d 206.

Action by Harold Everman against the Town of Kirklin and against the Municipal Water Works Corporation of Kirklin, Ind., for injuries sustained by the plaintiff as result of an explosion in a pit which housed a gasoline engine. From an adverse judgment, defendants appeal. Case transferred from the Appellate Court under Burns' Ann.St.1933, § 4-215.

Judgment affirmed as to Town of Kirklin, and reversed as to the Municipal Water Works Corporation of Kirklin with instructions to sustain motion for new trial.

Superseding opinion in 24 N.E.2d 412.Appeal from Hovard Circuit Court; Jos. C. Herron, Judge.

Thos. M. Ryan and Robison & Robison, all of Frankfort, and Overson & Manning, of Kokomo, for appellants.

Thos. H. Fittz, of Indianapolis, and McClure & Shenk, of Kokomo, for appellee.

FANSLER, Judge.

The appellee Harold Everman brought this action for damages for personal injuries, and recovered judgment against the appellants Town of Kirklin, Indiana, and the Municipal Water Works Corporation of Kirklin, Indiana, for $4,500.

Each assigns error upon the overruling of a motion for a new trial.

There are four paragraphs of complaint, none of which was questioned by demurrer. The verdict was general, and it is therefore a verdict for the plaintiff upon all paragraphs of complaint, and, if the evidence is sufficient to sustain a verdict upon any one of the paragraphs, the verdict must stand as against attack by motion for a new trial because of insufficiency of the evidence.

It is alleged in the first paragraph of complaint, and it appears from the evidence most favorable to the plaintiff, that the Municipal Water Works Corporation of Kirklin is an Indiana corporation organized for the purpose of erecting, operating, or leasing a waterworks plant; that it built a plant, which was leased to the Town of Kirklin, and which at the time of the injury complained of was operated by the Town of Kirklin; that one Johnson was an employee of the Town of Kirklin and was in general charge of and had supervision over the waterworks plant; that on the day the plaintiff was injured he went to the plant, by appointment, to see Johnson about employment at the plant; that, while they were talking, Johnson was working over a pit. He dropped a screw driver, which went down into the pit. He removed a board and asked and invited the plaintiff to go down into the pit and recover his screw driver for him. The plaintiff went into the pit, which was dark, and, after a few moments, reported to Johnson that he could not see the screw driver. Johnson handed him matches and asked him to light one of them so that he might see. The plaintiff lighted one of the matches, there was an explosion of gasoline fumes, and the plaintiff was badly burned . The pit housed a gasoline engine, which was fed with fuel from a gasoline tank buried outside the building. The gasoline fumes apparently collected because of a leak in the gasoline feed pipe. It appears that the tank on the outside of the building was higher than the feed pipe in the pit; that the tank had not been installed in conformity with the rules of the State Fire Marshal, which it appears would have required it to be below the surface of the outlet of the feed pipe. It is alleged in the first paragraph of complaintthat the defendants and their agent carelessly and negligently buried the storage gasoline tank, and carelessly and negligently maintained and operated their pumping station in such a manner that the leakage of gasoline was permitted to seep into the pit causing fumes and vapors and dangerous gases to accumulate therein; that the defendants and their agent, Johnson, knew, or, in the exercise of reasonable care, should have known, the danger involved in lighting matches in the pit, and that the plaintiff had no means of ascertaining the danger.

The allegations of the remaining three paragraphs of complaint were designed to charge the defendants with maintaining a nuisance, and that the plaintiff was injured as a result thereof. Not every dangerous agency is a nuisance, and we believe it can be said generally that an instrumentality maintained upon private premises may only be said to be a nuisance upon the ground that it is calculated to produce personal injuries when it is of such character, and so maintained, that it is reasonably and naturally calculated to injure the general public or strangers who may come upon the premises. But here it appears that the pit in which the dangerous situation was located was covered with protective boards or planks, and that it was not dangerous to the general public nor to strangers who might come upon the premises and use the premises as they were found; that it was only dangerous after the boards or planks...