# Yingst, Spec. Admin. v. Pratt > Indiana Court of Appeals · October 6, 1966 · 139 Ind. App. 695 URL: https://www.frixlaw.com/law-library/cases/9743505 ## Case - **Full name:** Yingst, Special Administrator Etc. v. Pratt - **Court:** Indiana Court of Appeals - **Decided:** October 6, 1966 - **Citations:** 139 Ind. App. 695; 220 N.E.2d 276; 1966 Ind. App. LEXIS 516 - **Precedential status:** Published - **Opinion:** Dissent by Faulconer - **Judges:** Wickens, Faulconer - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9743505 ## How later opinions describe it (automated extraction) - holding that a business owner who was the victim of a crime “as vicious as armed robbery” was excused from liability for an injury caused to a patron when the would-be robber’s gun discharged while the owner wrestled with him, but questioning whether the owner would have been … ## Opinion text Dissent Faulconer, J. — I am unable to agree with the views expressed in the majority opinion of this court. The appellee (plaintiff below) brought this action against Jennings B. Fudge, d/b/a Fudge’s Tavern, to recover damages for personal injuries sustained by appellee in the course of an armed robbery of a tavern owned and operated by Jennings B. Fudge. After the filing of the complaint for personal injuries and before the conclusion of the trial, Jennings B. Fudge died and, thereafter, George R. Yingst was appointed Special Administrator of decedent’s estate and substituted as party-defendant in the trial of the case. *702 The issues were formed by appellee’s amended complaint, the appellant’s answer in two paragraphs, and appellee’s reply to appellant’s second paragraph of answer. Appellee alleged in his amended complaint that he suffered personal injuries as “a sole, proximate result” of decedent-Fudge’s conduct during the armed robbery of decedent’s tavern while appellee was a patron there. Appellant, in the first paragraph of answer, denied certain allegations of appellee’s amended complaint; and in the second paragraph of answer contended that appellant’s decedent had acted in self-defense “to protect and preserve his person and property,” and that appellee had voluntarily entered the altercation thereby incurring the risk of his injuries and contributing to his own injury. Appellee, in his reply to the answer to the amended complaint, denied all the averments contained therein with the exception of the admission of the “struggle” with the armed robber. Trial was by jury which returned a verdict for appellee, and judgment was duly entered thereon by the trial court. Appellant’s motion for new trial, timely filed, was overruled, and this appeal was taken. The motion for new trial asserts that the verdict of the jury is not sustained by sufficient evidence and is contrary to law; that the trial court erred in overruling defendant’s motion, made at the. close of plaintiff’s evidence, to instruct the jury to return a verdict for the defendant; and that the trial court erred in overruling defendant’s motion, made at the close of all the evidence, to instruct the jury to return a verdict for the defendant. Appellant argues generally that the evidence fails to establish actionable negligence in that it does not show appellant’s decedent owed appellee a duty; that if appellant owed such duty, he failed to perform it; and that such breach, if any, was not the proximate cause of appellee’s injuries. Appellant *703 further contends that, on the contrary, the evidence proved that appellant’s decedent acted lawfully and reasonably in defense of his life and property and that of his patrons; that appellee’s injuries were caused by the voluntary “injection” of himself into the fracas between appellant’s decedent and the armed robber; that appellee was guilty of contributory negligence as a matter of law; and that appellee, by his acts, assumed the risk of his injury. The essential elements of actionable negligence are succinctly stated in Faris v. Hoberg et al. (1893), 134 Ind. 269 , at pages 274-275, 33 N. E. 1028 , as follows: “In every case involving actionable negligence, there are necessarily three elements essential to its existence: 1. The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; 2. A failure by the defendant to perform that duty; and, 3. An injury to the plaintiff from such failure of the defendant. “When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad or the evidence insufficient. “As a question of evidence, the facts are given to the jury, and if there is no evidence whatever as to one of the three elements, then, as a question of law, the plaintiff has failed, and the court may direct a verdict for the defendant.” See also: Elder, Receiver v. Rutledge, Admx. (1940), 217 Ind. 459, 464 , 27 N. E. 2d 358 ; Neal, Admr. v. Home Builders, Inc. (1953), 232 Ind. 160, 167-168 , 111 N. E. 2d 280 , 111 N. E. 2d 713 . There is no dispute concerning appellee’s status. He was a business invitee. He was a patron in decedent-Fudge’s tavern. Appellant’s decedent, therefore, owed appellee the duty of exercising reasonable care for appellee’s safety. Robertson Bros. Dept. Store v. Stanley (1950), 228 Ind. 372, 378 , 90 N. E. 2d 809 ; Silvestro v. Walz, (1944), 222 Ind. 163, 170 , 51 N. E. 2d 629 . I am of the opinion that the evidence in the record proves all the elements of actionable negligence and, therefore, supports the verdict of the jury. *704 The evidence most favorable to appellee shows that appellee, with his wife and a friend, entered decedent’s tavern and seated themselves with another couple at a table near the door “[a]t the end of the bar and two, three feet to the left,” and that such table was about even with the east end of the bar and six to eight feet from the entrance. That “not over five minutes” after they were seated a man entered the tavern with a “stocking over his face” holding a gun and stated, “This is a stick-up.” He proceeded to the east end of the bar, gave decedent — who was standing behind the bar — a sack and told him to “[p]ut the money in it.” That decedent walked to the cash register in the middle of the bar, filled the sack with money, and carried it back to where the robber was standing; that when the decedent handed the sack of money to the robber he (decedent) “grabbed for the gun”; and that when decedent “jumped” the robber they fell toward the door and “almost immediately the shooting started.” The evidence concerning the events which followed consists of several versions on the issue of when appellee entered the fracas. Appellee testified, on direct examination, that when the fight started he (appellee) was at the table three feet away; that decedent and the robber fell to the floor and to the east; and that “they scuffled over toward us.” Appellee also testified that the table had been overturned. On cross-examination appellee testified that “[a]fter they were on the floor, after there were two shots, I decided to protect myself and my wife, also.” Appellee’s wife, Mary Jane Pratt, testifying on behalf of appellee, stated that she was seated with appellee at the table; that the decedent grabbed the robber; that “[t]hey started fighting and scuffling. The next thing I [the witness] remember, they were on the floor right by our table. The gun was shooting.” Mrs. Ollie Buskirk, a witness for plaintiff-appellee, also testified that she was seated at the table with appellee and *705 his wife; that during the scuffle between the decedent and the robber “they landed, more or less, right at the end of our table” when appellee grabbed for the robber. I am of the opinion that under the circumstances and the evidence in this cause, whether or not the actions of decedent were those of a person using reasonable care for appellee’s safety, and whether or not there was a breach of duty, were questions properly for the determination of the jury. Appellant argues that even if there is evidence showing a duty on decedent to appellee and a breach thereof, there is no showing that such breach was the proximate cause of appel-lee’s injuries. Although these specific facts have not heretofore been before this court, several Indiana decisions provide us with some general guidelines. Our Supreme Court in Neal, Admr. v. Home Builders, Inc., supra (1953), 232 Ind. 160 , at page 167, 111 N. E. 2d 280 , quoted with approval from 65 C.J.S., Negligence, § 63, p. 554, that: “ ‘One who has, through his negligence, endangered the safety of another may be held liable for injuries sustained by a third person in attempting to save such other from injury.’ ” In order to recover it was necessary that appellee prove, not only that the conduct of appellant’s decedent in attempting to prevent the hold-up was a breach of duty he owed appellee as his patron, but that this breach of duty was the proximate cause of appellee’s injuries. “The Indiana courts regard foreseeability of injury as an essential element or fundamental test of proximate cause, and hold that negligence will not be deemed to have been the proximate cause of an injury so as to impose liability therefor unless the consequence was one which, in the light of attending circumstances, ought, could, or should reasonably have been foreseen or anticipated.” 21 I.L.E., Negligence, § 65, p. 325. Swanson v. Slagal, Administratrix *706 (1937), 212 Ind. 394, 413, 414 , 8 N. E. 2d 993 ; Phares v. Carr (1952), 122 Ind. App. 597, 603-604 , 106 N. E. 2d 242 . “Generally, where harmful consequences are brought about by intervening and independent forces, the operation of which might have been reasonably foreseen, then the chain of causation extending from the original wrongful act to the injury is not broken by the intervening and independent forces, and the original wrongful act will be treated as a proximate cause; . . . 21 I.L.E., Negligence, § 67, p. 332, Northern Ind. Transit, Inc. v. Burk (1950), 228 Ind. 162, 176-177 , 89 N. E. 2d 905 , 17 A.L.R. 2d 572 ; Chicago, etc. R. Co. v. Mitchell (1914), 56 Ind. App. 354, 358-359 , 105 N. E. 396 ; Leatherman v. Gateway Transportation Company (7th Cir., 1964), 331 F. 2d 241, 243 . As stated above, it is uncertain from the evidence in the record before us, exactly what action was taken by appellee after the fracas between appellant’s decedent and the armed robber began, nor can it be determined exactly when the action was taken. I do not believe that it can be determined from the evidence whether appellee became involved as a Good Samaritan and “rescuer” of one in peril, or acted in defense of himself and his wife. Therefore, these issues were to be determined by the jury under proper instructions. There is evidence from which the jury could find that appellee entered the fracas only when decedent and the robber reached the table at which appellee and his wife and their friends were seated. That appellee refrained from becoming involved until absolutely necessary is evidenced by his refusal to join with a friend seated with him urging him to attack the robber standing at the bar prior to the beginning of the fracas between decedent and the robber. I am of the opinion that the evidence supports the finding by the jury that appellant’s decedent could have reasonably foreseen that appellee, seated approximately three feet from the robber at the time decedent attacked the armed robber, could become involved in, or injured during, a fracas between decedent and the armed robber. It is certainly not an unreasonable assumption, under the circumstances here, that appellee *707 would not sit idly by and watch not only the decedent be overcome and possibly killed, but appellee’ life and those of his wife and friends threatened with grave bodily injury or death. In this regard appellant relies upon decisions from other jurisdictions, and chiefly upon Helms v. Harris (Tex. Civ. App., 1955), 281 S. W. 2d 770 . The Helms case is clearly distinguishable from the one presently before us. The Court of Civil Appeals of Texas, after setting forth the contention relied upon by appellant therein, at page 771, stated: “In the first place, the plaintiff sustained no injury as result of the defendant’s resistance of the robbery. . . . “In the second place, under the agreed statement of facts, the injury that the plaintiff did sustain was inflicted upon her intentionally by the bandit for causes unrelated to defendant’s resistance to him. . . .” Here, appellant’s decedent knew that the robber was armed prior to attacking him; knew that there were patrons in his tavern; knew appellee was in close proximity to where the robber stood and, under these circumstances, attempted to take a gun from the robber and subdue him. In my opinion, it cannot be said that the evidence produced does not support the findings of the jury, by their general verdict, that decedent owed a duty to appellee as an invitee, that he failed to perform that duty and that the breach of duty was the proximate cause of appellee’s injuries. The questions of the reasonableness of decedent’s actions in attacking the armed robber and that of foreseeability were questions of fact for the jury’s determination. Appellant urges that appellee, “knowing the inherent risk of physical harm in the situation, voluntarily elected to encounter it and entered into the situation involving obvious danger when he dived into the fight in which a pistol was blazing. When he so acted, he assumed, or incurred, any risk of injury; and he can not now recover damage for injuries sustained as a result.” Appellant further contends that appel- *708 lee’s “own disregard for his personal safety in jumping into the violent struggle between Fudge [appellant’s decedent] and the armed robber constitutes negligence that contributed to his own injury and, therefore, precludes recovery by him for harm suffered as a result.” Appellant alleged in Paragraph II of his answer to appel-lee’s amended complaint that appellee was contributorily negligent and assumed the risk. Acts 1959, ch. 63, § 1, p. 130, § 2-1025, Burns’ 1965 Cum. Supp., makes contributory negligence a defense in actions for damages brought on account of alleged negligence. The burden of proving contributory negligence is placed upon the defendant by this statute. Lincoln Operating Co. v. Gillis (1953), 232 Ind. 551, 556 , 114 N. E. 2d 873 ; 21 I.L.E., Negligence, § 165, p. 405. The burden of proving incurred or assumed risk is also upon the defendant when sued “for personal injuries.” Ridgway v . Yenny; Ridgway v. Lombardo (1944), 223 Ind. 16, 22-23 , 57 N. E. 2d 581 ; Pittsburgh, etc., R. Co. v. Hoffman (1914), 57 Ind. App. 431, 440 , 107 N. E. 315 ; 21 I.L.E., Negligence, § 165, p. 406. By its general verdict the jury found against the appellant upon these issues and, therefore, the finding being negative to appellant who had the burden of proof, he cannot challenge the insufficiency of the evidence to sustain them on appeal. State Farm Life Insurance Co. v. Spidel (1964), 246 Ind. 458 , 202 N. E. 2d 886, 888 ; Pokraka v. Lummus Co. (1952), 230 Ind. 523, 528-529 , 104 N. E. 2d 669 . “If the undisputed evidence entitles the one who has the burden of proof to a verdict which has been denied him, such verdict is contrary to law. To determine this question we may consider only the evidence most favorable to the appellees, together with all reasonable inferences which may be drawn therefrom.” Hinds, Executor Etc. v. McNair, et al. (1956), 235 Ind. 34, 41 , 129 N. E. 2d 553 . A person assumes a risk, thus precluding that person from recovering for an injury which results from the exposure, *709 when that person knowns of a danger arising from the act or omission of another and understands the risk therefrom, and voluntarily exposes himself to it. In Ridgway v. Yenny; Ridgway v. Lombardo, supra (1944), 228 Ind. 16 , at page 22, page 583 of 57 N. E. 2d our Supreme Court said: “The incurring of the risk must be really voluntary. If the continued exposure to a known risk of injury is due to a lack of reasonable opportunity to escape after the danger is appreciated, or if continuance of exposure to the danger is the result of influence, circumstances, or surroundings, which are a real inducement to continue, the doctrine does not apply, since the exposure is not in a true sense voluntary.” The evidence produced in this cause surrounding appellee’s actions, referred to above, prevents this court from holding, as a matter of law, that appellee’s actions showed contributory negligence on his part or that he assumed the risk as that doctrine is defined in Indiana. Under this evidence it cannot be said that it undisputedly shows appellee was a volunteer. There is evidence to sustain a finding that appellee was forced to enter the fracas in defense of himself, his wife and friends. Therefore, the findings on these issues by the general verdict are not contrary to law. “It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law.” Pokraka v. Lummus Co., supra (1952), 230 Ind. 523, 532 , 104 N. E. 2d 669 ; Strasser et al. v. Powell et al. (1961), 131 Ind. App. 508, 513 , 172 N. E. 2d 439 . Appellant lastly claims error in the refusal of the trial court to direct a verdict in his favor at the close of plaintiff-appellee’s evidence, and again at the close of all the evidence. I do not deem it necessary to lengthen this dissenting opinion by a re-discussion of the evidence which I feel amply sup *710 ported the action of the trial court in these matters. Such pertinent evidence in regard to other issues which I believe can equally apply to each of the motions for directed verdict has been discussed. Even under the highly commendable goal of “preventing crime,” upon which the majority opinion seems to base its reversal, whether or not the actions taken would be those of a reasonable man under like circumstances is a question for the jury whose general verdict is reversible only where the evidence is undisputed and unconflicting which — although treated as such by the majority opinion — is not the situation here as shown by the record before us. I would affirm the judgment of the trial court. Carson, J. and Mote, J., concur. Note. — Reported in 220 N. E. 2d 276 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9743505. Public record. Not legal advice.