Sullivan v. Baylor , 163 Ind. App. 600 ( 1975 )

Robertson, C.J.-

The plaintiff-appellant (Sullivan) brings this appeal from the granting of a motion for judgment on the evidence in favor of the defendant-appellee (Baylor).

The single issue on appeal is whether the trial court erred in granting the motion for judgment on the evidence, thereby removing the issue of liability from the consideration of the jury.

We hold that no error was committed.

The facts are that Baylor asked his friend and neighbor, Sullivan, to assist him in erecting a basketball goal on Baylor’s property. Sullivan agreed to help the following day when he returned from work. Upon arriving home, Sullivan saw that Baylor had begun preparation and crossed the road to assist him. Sullivan looked around and noticed that the goal post was positioned on the ground with the bottom end butted against a board protruding from the post hole. Baylor had connected his tractor to the goal post with two long chains attached to the top of the goal post assembly.

Baylor’s plan was to raise the goal post with the tractor and slide it into the hole. To lessen the power needed to raise the goal, Baylor planned to exert his force by pulling at an angle. To keep the post from rotating at its base, Sullivan was to position himself between the post and the tractor and hold a 10 ft. 2 x 4 against the top of the goal post. After explaining his plan, Baylor warned Sullivan that if the post began to fall to be sure to get out of the way.

When Baylor started his tractor, Sullivan placed the 2x4 into a seam between the post and the backboard. As the post was slowly raised it became more difficult for Sullivan to exert pressure. Once the post was raised above the length of the 2 x 4, it began to fall. Sullivan turned to run, but tripped over another 2x4 left in the area. The goal post fell on his right leg and ankle. He was taken to the hospital where it was determined that his right ankle was broken.

Sullivan filed suit for damages alleging that his injuries were caused by Baylor’s negligence. After Sullivan had completed the presentation of his evidence, Baylor successfully moved for judgment on the evidence. This appeal follows.

The motion for judgment on the evidence, as provided for by Ind. Rules of Procedure, Trial Rule 50, should be granted only when the evidence is without conflict and is susceptible of but one inference in favor of the moving party. Adkins v. Elvard (1973), 155 Ind. App. 672, 294 N.E.2d 160; Mamula v. Ford Motor Company (1971), 150 Ind. App. 179, 275 N.E.2d 849; Jordanich v. Gerstbauer (1972), 153 Ind. App. 416, 287 N.E.2d 784.

We are of the opinion that the evidence adduced at trial establishes as a matter of law that Sullivan incurred the risk of his injuries.

The doctrine of incurred risk has been defined as follows:

“The doctrine of incurred risk is based upon the proposition that one incurs all the ordinary and usual risks of an act upon which he voluntarily enters, so long as those risks are known and understood by him, or could be readily discernible by a reasonable and prudent man under like or similar circumstances.” Stallings et al v. Dick (1965), 139 Ind. App. 118, 210 N.E.2d 82.

Thus, the doctrine is applicable when two elements are present. First, the plaintiff must act voluntarily. Second, he must know and understand the risk to which he voluntarily exposes himself or in the exercise of reasonable care should know and understand the risk.

In the present case, the facts clearly establish that Sullivan voluntarily assisted Baylor in attempting to raise the goal post. There are no facts in the record that would support a contrary inference. Baylor asked Sullivan if he would help erect the goal and Sullivan consented to do so.

It is also equally apparent that Sullivan was aware of the risks involved in the undertaking. The risk that the goal post might fall was obvious. Sullivan positioned himself with the 2x4 for the sole purpose of preventing the goal post from rotating at its base and falling. Moreover, he had been warned by Baylor . . if it starts to fall get out of the way and let it go.”

As for the 2x4 which prevented his escape, Sullivan testified that he had observed three long boards in the immediate area when he first arrived. There is no evidence in the record that would support an inference that the boards were hidden or should not have been apparent to any reasonable and prudent man under the circumstances.

For the above reasons, it is our opinion that the undisputed evidence produced at trial establishes that Sullivan incurred the risk as a matter of law and no jury question was presented.

The trial court was correct in granting the motion for judgment on the evidence.

Judgment affirmed.

Lowdermilk, J., concurs; Lybrook, J., dissents with opinion.