Town of Kirklin v. Everman
| Decision Date | 05 January 1940 |
| Docket Number | 16097. |
| Citation | 24 N.E.2d 412 |
| Parties | TOWN OF KIRKLIN v. EVERMAN. [a1] MUNICIPAL WATER WORKS CORPORATION OF KIRKLIN v. EVERMAN. SAME v. EVERMAN et al. |
| Court | Indiana Appellate Court |
Appeal from Howard Circuit Court.
Action by Harold Everman against the Town of Kirklin, Ind., and the Municipal Water Works Corporation of Kirklin, Ind., to recover damages for personal injuries. From a judgment for plaintiff against both defendants, defendants appeal.
Judgment reversed, with instructions.
Robison & Robison and Thomas M. Ryan, all of Frankfort, and Overson & Manning, of Kokomo, for appellants.
Thomas H. Fittz, of Indianapolis, for appellees.
This is an action by Harold Everman against the appellant Town of Kirklin, Indiana, and the Municipal Water Works Corporation of Kirklin, Indiana, for damages for personal injuries.
The issues were formed by answers in general denial to each of the four paragraphs of the appellee's second amended complaint. The case was submitted to a jury for trial which returned a verdict in favor of the appellee against both appellants in the sum of $4,500. Judgment was rendered on this verdict. The only error presented in this court is the alleged error in overruling the motion for new trial.
The factual background set out in each paragraph of complaint is not controverted. The complaint alleges and the record discloses that the Municipal Water Works Corporation of Kirklin, Indiana, is a corporation organized for the purposes of building, owning and operating a waterworks plant and distribution system for the purposes of supplying water to the Town of Kirklin, Indiana, appellant herein. That as a part of said waterworks system there was a pumping station located in a building on the principal street of said Town of Kirklin and within said building and as a part thereof is a pit, four feet wide, eight feet long and approximately five feet deep. This pit was covered by loose boards and beside it was a gasoline motor for use in operating the pumps in the event the electric motor became disabled. The gasoline with which this gasoline motor was operated came from an underground storage tank located on the outside of the building and a pipe led from this tank to the gasoline motor. The gasoline was forced to the motor by means of air pressure within the tank. This tank was about eighteen inches north of the north wall of the building, which wall was made of concrete. The record further discloses that the Municipal Water Works Corporation of Kirklin, Indiana, on November 2 1927, leased the waterworks plant and distribution system to the Town of Kirklin for a period of approximately twenty years, which lease terminates July 15, 1947. Under and by virtue of the terms of this lease the Town of Kirklin agreed to keep and maintain all property and equipment used in the sale and distribution of water in as good condition as when received and all necessary improvements and repairs were to be made at the expense of the lessee. The appellants were operating under said lease at the time of the injuries complained of.
The first paragraph of the second amended complaint alleges that the appellant, Town of Kirklin, Indiana, and the Municipal Water Works Corporation of Kirklin, Indiana, carelessly and negligently managed operated and maintained said pumping station in such a manner as to permit gasoline to seep, drain and accumulate in said building and in said pit and that said gasoline and oils grease, and other waste materials were negligently permitted to accumulate in said pit, thereby becoming an explosive hazard to persons lawfully within or near said building and pit. That on or about March 5, 1934, the plaintiff, appellee herein, was in said pumping station at the invitation of one Johnson, the manager, operator, and superintendent of said plant who was at said time working on said pumping machinery. The said Johnson, while so engaged, dropped his screw driver through the loose covering over said pit, and asked the plaintiff, appellee herein, to go into said pit to recover said screw driver. The appellee accordingly went down into the pit where it was dark and being unable to locate the lost screw driver, the said Johnson handed him matches and told him to light the same in said darkened pit. The striking of the match ignited the fumes accumulated in said pit causing a combustion and explosion, as a result of which the appellee was seriously burned. The second paragraph of amended complaint alleges substantially the same facts and charges negligence in the burying of the gasoline storage tank in contravention of the rules and regulations of the State Fire Marshal of Indiana. The third paragraph charges the appellants with the creating and maintenance of a nuisance. The fourth paragraph charge the appellants with negligence in sending the appellee into a pit when they knew or should have known of its dangerous condition.
The appellant contends under the general assignment of error in overruling the motion for new trial that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. Under this assignment the appellant contends that the evidence fails to show any knowledge whatever on the part of the appellants of the dangerous condition in the pit in question. The correctness of an instruction is challenged in this connection. On this subject, the court gave appellee's tendered instruction No. 26, which reads as follows: "If you find by a fair preponderance of the evidence that on or about the 5th day of March, 1934, this plaintiff went to the defendants' pumping station in Kirklin, Indiana, for the common interest of himself and the defendants, or the mutual advantages of each, or went there to work for the defendants or either of them and met a servant working for the defendants by the name of Mr. Johnson, and if you find that Johnson was, at the time the plaintiff went to the pumping station, working and repairing machinery in the station and was in the line of his duties as servant, and dropped a screw driver into a pit on the premises of the defendants, which pit was dark, and if you further find that the servant Johnson told the plaintiff to go down into the pit and look for the screw driver, and if you further find that the plaintiff did go down in the pit and that the servant Johnson gave him a match to make a light and the match was struck, and if you further find that there was an explosion and this plaintiff was burned and injured without his fault, and if you further find that the defendants allowed combustible gasoline to collect in said pit, or other combustible material, and that the defendants had notice that this gasoline or combustible material was in said pit or could have known that it was there in the exercise of reasonable care and that by the exercise of reasonable care the defendants might have discovered the unwholesome and dangerous character of the pit before the accident, and if all other necessary allegations of the plaintiff's complaint have been proven by a fair preponderance of the evidence, then your finding should be for the plaintiff."
It will be noted from a reading of this instruction that the court informed the jury that if the defendants (appellants herein) had notice that the combustible material was in said pit or could have known of it by the exercise of reasonable care before the accident, then the plaintiff was entitled to recover. It is our opinion that this instruction does not fairly state the law as applicable to the facts and issues before the jury. The instruction entirely omits the proposition that the notice which the city must have of dangerous conditions before negligence can be charged against them for permitting the same, must have existed for such time that the city in the exercise of ordinary care could have corrected the condition before the injury. It is not sufficient to say that the city by the exercise of ordinary care could have discovered the dangerous character of the pit before the accident. Before liability can attach, it must be made to appear that the city by the exercise of ordinary care and diligence could have discovered said dangerous condition long enough before the injury to the appellee to have enabled them to repair or correct the same. As was said by the Supreme Court of this state in the case of Chicago, I. & L. Railroad Company v. Wilfong, 1910, 173 Ind. 308, 312, 90 N.E. 307, 308: "In cases like the one before us, it is well settled in this state that the employé must prove, not only that the alleged defect existed, but that the employer had knowledge thereof, actual or constructive, long enough before the accident, to repair the defect or give warning to the employé, and failed to do so."
Similar language on the same proposition is found in the case of Malott v. Sample, 1905, 164 Ind. 645, 648, 74 N.E. 245, 246:
See also City of Hammond v. Jahnke, 1912, 178 Ind. 177, 99 N.E. 39.
A case very similar to that of the one at bar is Snipps v Minneapolis & St. L. R. Co., 1914, 164 Iowa 530, 146 N.W. 468, 471. In this case the plaintiff was injured by an explosion of gasoline in or near a gasoline engine which was maintained...
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