32 Ind. App. 644 | Ind. Ct. App. | 1904
Lead Opinion
Action by appellee, verdict and judgment for $1,500. Complaint in tbroo paragraphs. Verdict based on first and third. Separate demurrers thereto were overruled.
The facts set up'in the first paragraph arc, substantially, that appellant is a manufacturer of cars at Clarksville, Clark, county, Indiana, and, in one of the departments of its plant, maintained and operated a machine called a “woodworker,” used to cut wood into desired shapes, and for that purpose supplied with knives attached to a shaft, which, when the machine was operated, revolved, bringing said knives in contact with wood placed on a table and run over said knives, which said machine should have been supplied with springs to hold said wood in proper position as it was run over'said knives, hut appellant, well knowing that said machine was not supplied with such springs, negligently failed to provide them; that on January 28, 1902, appellee was employed by appellant to operate a planing-machino, at said plant, and, under his contract, he was not required to perforin any other or different service; that ho operated said planing-machine under said employment, and while so employed, on the 1st day of February, 1902, was directed and required by appellant temporarily to leave said employment and operate said wood-worker, and in obedience to such direction lie did temporarily leave said employment and engage in the operation of the wood-worker. While so engaged lie placed a piece of wood on the table, and proceeded to run it over said knives for the purpose of cutting it into desired shape, and while so engaged he was, by the absence of such springs, required to hold such wood in position with his hands as it passed over said knives,
The third paragraph.differs from the first in the charge of negligence. It is averred that there was danger in operating the machine, as appellant knew, and that a guard could have been placed thereon without interference with the proper operation of the machine, which would have prevented any injury from said danger, but appellant, well knowing that it had not been done, then and there, and in violation of the statute, negligently failed to proyide said machine with such guard, it being then and there without such guard, by reason of which appellee was injured, etc.
The complaint is skilfully drawn, and the briefs filed in this court by both parties are model ones. The first paragraph is not defective in failing to aver that it was practicable to provide the springs which it is averred should have been provided and were negligently not provided. The absence of springs is not averred to have been unknown to appellee, nor to have constituted a latent or unobservable defect. The risk would therefore be an assumed risk, except for the further allegation as to the temporary change of employment. The doctrine of the assumption of risk does not apply where the employe is ordered to do xvork out of the line and away from the place
The act of 1899 (Acts 1899, p. 231, §7087i Burns 1901) makes it the duty of an owner of a manufacturing establishment to protect the machines operated therein: “All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery of every description therein shall be properly guarded.” Buehner Chair Co. v. Feulner, 28 Ind. App. 479. The averments are that appellant negligently failed to perform the duty thus enjoined upon it, and are sufficient.
The doctrine of assumed risk does not apply where the negligence counted upon is the violation of this positive and explicit statute. Monteith v. Kokomo, etc., Co., 159 Ind. 149; Buehner Chair Co. v. Feulner, supra; Wortman v. Minich, 28 Ind. App. 31; Davis Coal Co. v. Polland, 158 Ind. 607, 92 Am. St. 319. In so far as Bodell v. Brazil Block Coal Co., 25 Ind. App. 654, holds otherwise, it has ceased to be authority.
The facts averred do not include a description of the conduct of appellee at the time he was injured, and, in their absence, contributory negligence cannot be determined. It will not do to say that the mere fact that an employe works at a defective machine concludes the question of contributory negligence against him. The doctrine of assumed -risk covers that phase. A man may be careful while working with a dangerous machine. “Assumption of risk is a matter of contract. Contributory negligence is a question of conduct.” Davis Coal Co. v. Polland, supra. The complaint was not subject to the objection that contributory negligence affirmatively appeared therefrom, and the demurrers were properly overruled.
Appellant filed an answer in two paragraphs to the first paragraph of complaint; (1) A general denial; (2) that
Appellant’s motion for judgment on the answers to interrogatories was overruled. It asserts that such action was erroneous, for the reason that it is disclosed by such answers that appellee’s employment was not limited as averred in the first paragraph of his complaint. Without setting out the interrogatories and answers relied upon, it is sufficient to say that, according to an answer to one interrogatory, .he was, at the time he was injured, engaged in other work than that he was employed to perform. Conflicting answers to interrogatories are fatal to a motion for judgment notwithstanding the general verdict.
What has heretofore been said upon the subject of contributory negligence applies fo the motion for judgment, as well as to the ruling on the demurrer to the complaint. The facts considered in Buehner Chair Co. v. Feulner, supra, were not limited to the. character of the machine, and the exposure of all its parts to the operator’s view, but included a failure to look while he was operating it, an,d the placing of his arm or hand under the bit, by which he was injured, without any necessity for so doing. The court did not err in overruling the motion for judgment.
The theory of the first paragraph of the complaint is that appellee was employed to operate a planer, and that he was required by appellant to leave, temporarily, his regular employment and engage in the operation of a wood-worker, the latter being a more hazardous occupation than that which he had contracted to perform. The evidence of the appellee — and there is none in the record more favorable to himself, nor conflicting with it — is that he was employed in the cabinet department of appellant’s shop by the foreman of that department, who told him they were going “to start to work nights,” and if he wanted to he could work, and that Mr. Walker would assign him. This conversation took place on Saturday, and on Monday he reported for work, and was told by the foreman to go to the new planer, which he did, working there eight or ten days. The night before he was injured the night foreman said to him: “Clark, you run the wood-worker, Dick Rouerk is off; he won’t be hero.” Appellee ran the latter machine that night, and was injured the next night. lie worked the second night until about 2:30 a. m. “I wanted to run another machine — a sticker — but that would leave the woodworker standing idle.” lie had, previous to the last employment, worked at the planer three years, five or six feet distant from the wood-worker, and was familiar with it. The evidence does not show that the appellee was employed to work at the planer. There was nothing in the contract relative to the machine at which he was to .work. Ho was employed in the department, and might have been assigned by the foreman to the wood-worker in the first instance, as he was in the last. The facts stated do not bring the case within the rule stated, nor within its reason, and
The ninth instruction given was as follows: “In determining the amount of damages you will assess, if you find a verdict for the plaintiff, you will take into consideration the character, nature, and extent of his injuries, tho pain and .physical suffering and the mental anguish caused thereby, the loss of his services and value thereof, and expenses inewired for services of physician and surgeon who attended and treated him, and for nursing and medicine, and to what extent his ability to earn a livelihood has been impaired by reason of his injuries, and assess him such damages as will reasonably and fully compensate him for his injuries, not to exceed the amount asked for in the complaint.” Objection is made to that part which is italicized.
There was no evidence as to the value of any services rendered to appellee by a jffiysician or surgeon, or that any medicine was furnished or nursing done. Instructions should be pertinent to the evidence in the case. Adams v. Vanderbeck, 148 Ind. 92, 62 Am. St. 497; Blough v. Parry, 144 Ind. 463; Lake Erie, etc., R. Co. v. Stick, 143 Ind. 449, 466; Pelley v. Wills, 141 Ind. 688, 691; Lindley v. Sullivan, 133 Ind. 588; Summerlot v. Hamilton, 121 Ind. 87; Nicklaus v. Burns, 75 Ind. 93; Moore v. State, 65 Ind. 382; McMahon v. Flanders, 64 Ind. 334; Hill v. Newman, 47 Ind. 187; Hays v. Hynds, 28 Ind. 531; Citizens St. R. Co. v. Hoffbauer, 23 Ind. App. 614. “Instructions should be pertinent to the case. Juries are apt to assume, and are justified in assuming, that they are applicable.” Hays v. Hynds, supra; Lindley v. Sullivan, supra; Blough v. Parry, supra. “Jurors are liable enough to consider matters outside of the evidence, without being led off
Section 401 Burns 1901 provides that no judgment shall be reversed for error in the proceedings which does not injuriously affect the adverse party. Section 670 Burns 1901, that there shall be no reversal “where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below.” It has always been held, where these provisions are invoked, that the record must be such as to show that the error complained of did not affect the appellant’s substantial rights. City of Lafayette v. Ashby, 8 Ind. App. 214; Rush v. Thompson,
When the court said to the jury that in determining the amount of damages “you will take into consideration * * * expenses incurred for services of physician and surgeon who attended and treated him, and for nursing and medicine, * * * and award him such damages as will reasonably and fully compensate him,” it thereby, in peremptory phrase, directed that elements of damages be considered which had not been proved.. In the absence of such proof such elements ought not to have been taken into account, and the instruction was wrong. Chicago, etc., R. Co. v. Butler, 10 Ind. App. 244, 259. It has been held that the absence of any evidence as to the existence of elements of damage rendered instructions similar to that under consideration harmless, where they included a direction to find from the evidence — a direction which was not included in the instruction under consideration. Ohio, etc., R. Co. v. Stein, 140 Ind. 61; City of Indianapolis v. Scott, 72 Ind. 196; Louisville, etc., R. Co. v. Falvey, supra; Pittsburgh, etc., R. Co. v. Carlson, 24 Ind. App. 559; Citizens St. R. Co. v. Hoffbauer, supra.
In so far as these cases are based upon their own particular facts, from which the harmlessness of the erroneous instructions appeared, their authority does not govern this case; and there is no room in this case to apply the presumption that the jury did not find anything except from the evidence, or consider any matter not shown by the evidence, for the reason that it is the duty of the court to state the law, and the duty of the jury to take it as stated. The presumption is that the law was correctly stated (§542 Burns 1901, sub. 5; Herron v. State, 17 Ind. App. 161), and that the instructions were followed by the jury: Walworth v. Town of Readsboro, 24 Vt. 252; Pettibone v. Maclem, 45 Mich. 381, 8 N. W. 84; Stanton v. French, 91 Cal.
The verdict of $1,500, when considered with reference to the character and extent of the injury complained of, does not permit it to be said that the elements of damage erroneously stated in the- ninth instruction were not taken into account. It is at least possible that the verdict was affected by speculation as to what was the probable value of such service as would probably be rendered necessary by injuries such as appellee received. The defendant is as much entitled to have damages assessed in accordance with the law as it is to have its original liability determined with reference thereto.
Other questions argued are not likely to arise in a retrial of the cause.
Judgment reversed and cause remanded, with instructions to sustain motion for new trial. Henley, C. J., Wiley, Comstock and Black, JJ., concur.
Concurrence Opinion
I concur in the result. The doctrine announced in Bodell v. Brazil Block Coal Co., 25 Ind. App.
