173 Ind. 39 | Ind. | 1909
Appellee, Charles Stolte, a minor, by his next friend, instituted this action in the lower court to recover from appellant for personal injuries sustained by appellee, and alleged to be due to the negligence of appellant. Upon the issues there was a trial by jury, and a verdict returned awarding plaintiff damages in the sum of $6,500-. Over a motion for a new trial, judgment was rendered upon the verdict. From this judgment appellant prosecutes this appeal.
The complaint is in two paragraphs. By the first it is alleged that the plaintiff is nineteen years of age, and that William Stolte has consented to act as his next friend; that the defendant, on April 8, 1904, was incorporated under the laws of Indiana, and has its principal place of business in the city of Indianapolis; that on June 28, 1906, it owned, occupied and controlled a tract of land in said city, and numerous buildings thereon designed for its use in connection with the educational work which it was then conducting ; that one of said buildings was a power-house, in which, side by side, were two steam-boilers, each being of 125 horsepower ; that these boilers were used to generate steam to furnish heat, power and light for use by defendant in its educational work, and said boilers required the services of an engineer and a fireman; that on said day F. P. Corey was de
The second paragraph of the complaint avers virtually the same facts charged in the first, the only difference being that in the second paragraph it is alleged that the defendant had in its employ, as a general director of buildings and grounds, W. C. Smith, who was authorized by the defendant to employ contractors and workmen to repair said boilers and machinery when needed; that said Smith employed said Woollen & Gallon to repair the feed-water pipes on the occasion in question.
To each of these paragraphs the defendant demurred for want of facts. Its demurrer was overruled, to which ruling it excepted. It then answered by the general denial, and also filed a special answer in two paragraphs. By these paragraphs it set up that it was incorporated under the voluntary association act of the State of Indiana, and set out in full its articles of association; that the object of said association, as shown by the articles, was “to establish, maintain and conduct at Indianapolis, Indiana, a general school or like schools, wherein, under evangelical Christian influences, the arts and sciences shall be taught in both practical and theoretical ways; and the proposed plan of doing business in carrying out said objects is to procure financial endowment for said association and corporation;” that it is shown in
For want of facts to constitute a defense, the plaintiff demurred to the paragraphs of this special answer, and his demurrer was sustained.
It is next claimed that it was the duty of Prauer to inspect the various parts of the place where he and his helper were to work, including valves on the pipes, etc., and to know that every part thereof would remain safe during all of the conditions that might obtain while the south boiler was being used in storing steam. It is said there is no allegation that such inspection was made, and therefore it is argued that this renders the complaint deficient. This contention is untenable, for the facts alleged in the complaint disclose that Prauer and appellee, when they were sent by their employer to repair the boiler, reported to Corey, and asked him for instructions in regard to the repairs to be made. Corey, as it appears, showed them the boiler which
It is next insisted that the court erred in sustaining the demurrer of appellee to the second paragraph of appellant’s special answer, because the facts therein alleged, and as shown by the articles of association filed therewith, establish that appellant is an eleemosynary or charitable institution; that the principle of respondeat stiperior does not apply to benevolent or charitable institutions, such as schools, hospitals and colleges.
Under their argument on the alleged error of the court in overruling the motion for a new trial, counsel insist that the verdict is not sustained by sufficient evidence. Under this insistence counsel for appellant reaffirm that the negligence which resulted in the injury to appellee was due either to the omission of Frauer to examine the premises before he sent appellee into the boiler to make the repairs, or to the act of Corey and Fulton in blowing off the steam in the south boiler. Therefore it is contended that in either case the negligence was that of a fellow servant, and therefore defeats a recovery in this action. There is no evidence to justify this contention. The evidence fully discloses that the injury sustained by appellee was Avholly due to the negligence of the servants of appellant, Corey and
We have fully examined and considered the evidence in the record, and are satisfied that it at least fully establishes the facts alleged in the second paragraph of the eomplaint and supports the verdict of the jury upon every material point. We do not deem it essential, however, to make a statement of the evidence in detail, or point out wherein it supports the verdict. The contention that the damages assessed appear at first blush to be excessive and outrageous, and that it must be apparent that some improper element influenced the jury in making the assessment, is untenable and finds no support under the evidence. The evidence shows that the injury complained of ivas wholly due to the negligence of appellant, as charged in the complaint, committed by it through its servants in question, and there is no room for it to escape liability under the facts established in the case. It is shown that the suffering of the plaintiff was very agonizing. In the language of witnesses, his skin and flesh in places were “simply cooked.” For some weeks after the accident his arms were said to have looked like raw beefsteak, and when he got out of the boiler his skin was hanging in strings down his hands, arms and face. Por more than a week he was unable to talk. The skin on his face was so cooked that his eyebrows and eyewinkers fell out.. The pain was so intense that after he was taken to the hospital in the city of Indianapolis it was found necessary to administer morphine every three or four hours to relieve his pain. The only food which he could take was that of a liquid nature, which had to be administered to him through a tube while he was in the hospital. Doctor Bigger, a witness on the trial, testified that upon an examination of appellee after the accident, he found that his face, neck, hands, arms and legs were badly scalded, in fact all the exposed portions of the body were in that condition, and he was suffering intense pain,
It is contended that the court erred in not withdrawing, at the request of appellant, the first paragraph of the complaint from the jury, for the reason that in the first paragraph it is charged that F. P. Corey acted for the defendant in employing Woollen & Gallon to repair the boiler, while in the second paragraph it is averred that W. C. Smith acted for the defendant in contracting with said firm to make the repairs. It is further stated that as a matter of evidence upon which the case was submitted to the jury, the parties stipulated and agreed that said W. C. Smith, on behalf of the defendant, employed the firm of Woollen & Gallon to make the repairs in question. It is claimed that the parties by this agreement stipulated and agreed that the material fact averred in the first paragraph in regard to the employment of the firm in question by Corey was not true, and that thereby the first paragraph was virtually withdrawn. It is true that the court, in its charge, informed the jury that the complaint was in two paragraphs, and that the only material difference in the two paragraphs was that in the first it was alleged that F. P. Corey acted for the defendant in employing said Woollen & Callón to repair the boiler, while in the second paragraph it was averred that W. C. Smith acted for the defendant in contracting for the repairs. If the parties by the stipulation in question agreed that W.
Some other minor criticisms are urged against some of the court’s instructions, but these objections, as we view them, are not well taken, and may be said to be devoid of merit. This ease appears to have been fairly tried in the lower court, and, under the facts and the law applicable thereto, a correct result seems to have been reached.
Judgment affirmed.