Opinion

Neal, Admr. v. Home Builders, Inc.

  • 232 Ind. 160
  • 111 N.E.2d 280
  • 1953 Ind. LEXIS 183
Court
Indiana Supreme Court
Filed
Mar 23, 1953
Status
Published
Author
Bobbitt
On the bench
Gilkison, Emmert, Bobbitt
Cited by
100 cases
Authority
More cited than 10.0%

The opinion

On Petition for Rehearing

Bobbitt, J.

As appellant points out in his petition for rehearing, an amendment by interlineation to the amended complaint was inadvertently left out of sub-paragraph (a) of numerical paragraph 8 of that part of the complaint appearing in the opinion. This paragraph with the interlineations as they appear on p. 13 of appellant’s brief is as follows:

“(a) In failing to use reasonable care in barricading the entrance of the semi-completed *208 dwelling house as herein described when they knew, or in the exercise of reasonable care should have known, that children of immature years and more particularly the children of plaintiff’s decedent were attracted to the semi-completed dwelling house for the purpose of play and sport, and were at the time and place of injury to plaintiff’s decedent accustomed to using the semi-completed dwelling house as a place of sport and play, — said defendants and each of them knew, or in the exercise of reasonable care, could have known, that the said semi-completed house was in fact inherently dangerous to such children by reason of the many pitfalls and opportunities for them to climb and fall, and otherwise injure themselves without knowing of the danger because of their immature years.”

We were fully aware of this amendment at all times during the consideration of the case. The addition of the italicized words above does not change the specific act of negligence charged.

On p. 167 of the opinion, 232 Ind. 160 , 111 N. E. 2d 280, 284 , we said:

“The sole act of negligence here charged is: The failure of appellees under the circumstances as set out in the amended complaint to ‘barricade the entrance to the semi-completed dwelling house’ described in said complaint.” (Italics added.)

The circumstances referred to above included all those recited in the complaint as finally amended before trial.

Appellant admits in his petition for rehearing that a stepladder is not “a dangerous instrumentality” or an “attractive nuisance” and affirms the position taken by him in his brief and in oral argument, that neither a semi-constructed dwelling house nor a stairway is an “attractive nuisance” or a “dangerous instrumentality.”

Nothing appears in the petition for rehearing which requires us to change our opinion.

*209 Petition for rehearing denied.

Emmert, C. J. and Gilkison, J. dissent.

Note. — Reported in 111 N. E. 2d 280 and 111 N. E. 2d 713 on petition for rehearing.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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