49 Ind. App. 334 | Ind. Ct. App. | 1912
Appellee, by Ms next friend, avIio is Ms father, recovered a judgment in the Tipton Circuit Court from which this appeal is taken. The complaint on which the judgment is based is in two paragraphs, which in their substantial averments are practically alike.
Each of these paragraphs states facts showing that appellee was, at the time the events therein alleged occurred, a boy about fifteen years of age, and that on December 2, 1908, he was sent by his father with a horse and buggy to the town of Elwood to bring appellant home; that appellee was so sent to the town of Elwood in response to a telephone message conveying the information that appellant was severely sick at that place; that he arrived there late in the afternoon, and found appellant in the saloon of Fred Wolf, not sick but somewhat intoxicated.
The complaint further shows that appellee informed appellant that he had come to take him home, whereupon appellant insisted that appellee take a drink. They went to the bar in company with a third person, and appellant ordered and paid for three drinks of whisky, which were served by the bartender; and appellee, at the solicitation of appellant, drank a glass of whisky. They then left the saloon and started home. After going a short distance, appellant suggested that they go to a place known as “Skinny Bucks,” where appellant again purchased drinks, and appellee, at the request and solicitation of appellant, drank a bottle of beer. They then got into the conveyance and started for home, and when they had reached a point on the road near the county line appellant took from his pocket a bottle of
by any fair and reasonable' mind, the court should draw the inference, and thus determine the question; but, on the other hand, where the facts are of such a character that two minds equally reasonable, equally honest and equally fair and candid, might draw opposite inferences, the question of contributory negligence is for the jury and not for the court. Louisville, etc., R. Co. v. Sears (1894), 11 Ind. App. 654; Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571; Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490; Dickman v. Louisville, etc., Traction Co.
If a man of full age voluntarily drinks intoxicating liquor until he becomes drunk, we think that the only reasonable inference that eaji be drawn from such fact, by any fair mind, is that he contributed to his own intoxication; but, in this case, where it appears that the plaintiff was less than sixteen years of age, and where the averments of the complaint do not show that he had ever drank intoxicating liquors before, or had any special knowledge of their effects, we think that there is room for a difference of opinion among reasonable men on the question as to whether, under the circumstances disclosed by the averments of the complaint, he was guilty of contributory negligence in drinking the liquor, and that opposite inferences might be, and probably would be, drawn by different minds equally fair and reasonable. Under such circumstances this court may not say as a matter of law that the complaint states an affirmative defense. The complaint does not therefore state an affirmative defense, and the demurrer thereto was properly overruled.
The second cause assigned for a new trial is that the verdict is not sustained by sufficient evidence. As the judgment must be reversed on account of erroneous instructions, and as the evidence on another trial may be somewhat different from the evidence in this record, it is not important that we should discuss the evidence on this appeal.
The third reason for a new tfs^l is that the verdict is contrary to law. The principal ground upon which appellant claims that the verdict is contrary to law is that both paragraphs of complaint are insufficient to state a cause of action. This question has been fully discussed'in a former part of tin's opinion, and need not be further mentioned here.
This instruction is clearly erroneous, as it permitted a recovery by the plaintiff regardless of whether he was guilty of contributory negligence. The jury was told by this instruction that it was not material to plaintiff’s right to recover whether he had drunk intoxicating liquors and been drunk prior to the time of the injury complained of, and that it was also immaterial whether he drank the liquors willingly or unwillingly. We think that both of these questions were proper to be considered by the jury in determining whether appellee was or was not guilty of contributory negligence. It was proper for the jury to consider what experience, if any, appellee had previously had in the use of intoxicating liquors, and also what knowledge he possessed as to their effects, to the end that it might properly judge how much care and discretion appellee was capable of exercising in the use of such liquors, and whether he was guilty of negligence in drinking to excess.
Other questions are presented as to the rulings of the trial court in giving certain instructions and in refusing to give certain other instructions tendered by appellant. The questions thus presented are so related to the questions already discussed that a further discussion of them is unnecessary. It is not likely that the same quéstions will arise on another trial.
For error of the trial court in giving to the jury instruction number six, the judgment is reversed, with directions to grant a new trial.
Myers, J., concurs in result, but dissents from the reasoning and principles of law employed in sustaining the complaint.