12 Ind. App. 421 | Ind. Ct. App. | 1895
This is an action for damages for a personal injury received by the appellee while in the employment of the appellant.
The complaint avers, in substance, that the defendant, a corporation, at the times hereinafter mentioned, was engaged in the business of manufacturing strawboard at its'; factory near Noblesville; that the plaintiff was twenty-one years old in July, 1893; that in September of the same year he came to Noblesville, from Missouri to find employment; that he was employed by the defendant company about three weeks after he came to Noblesville, to work at the cutting machine, and to deliver the finished board therefrom, thence to be carried away and stored by other employes (a position in which
The complaint concludes with a description of the injury and the damages sustained, and asks judgment for $10,000.
The appellant answered with the general denial. The cause was tried by a jury, who returned a verdict in favor of the appellee for $2,500.
With the general verdict, the jury also returned answers to certain intorrogatories submitted to them.
' The appellant moved for judgment in its favor on the answers to the interrogatories, notwithstanding the general verdict, which motion was overruled.
The appellant also moved for a new trial, which motion was likewise overruled.
In support of the first specification of error, it is contended that answers to the interrogatories returned by the jury establish the following facts: That appellee was, at the time of his injury, twenty-one years of age, in full possession of his senses and a person of ordinary intelligence; that the dangers, perils, and hazards of his services were open and apparent; that he had been'frequently warned of the danger of passing the paper up between the dryers; that just prior to his injury he was warned to be careful and look out for his hands; that his injury was caused by letting his hand follow the paper which he was passing up between the dryers.
It is urged that these facts establish negligence on the part of the appellee, in not using his senses and in not heeding the warnings given him, and in letting his hand follow the paper which he was passing up between the dryers.
The several interrogatories and answers propounded to and returned by the jury were as follows:
“1. Was not the plaintiff over the age of twenty-one years when he received his injury? Ans. Yes.
“2. Was not plaintiff in full possession of his senses, and a person of ordinary intelligence, at the time he received the injury? Ans. Yes.
“3. Were not the dangers, perils, and hazards of the service which he was peforming at the time he was injured open and apparent to him? Ans. Yes; it would be to an experienced man.
“4. Were not the dangers, perils, and hazards of the service which plaintiff was performing at the time of his injury open and apparent to a person of ordinary intelligence? Ans. To an experienced man only.
“5. Could not plaintiff have avoided his injury by*426 using ordinary care while performing the work which contributed to his injury? Ans. To an experienced man only.
“6. Could not plaintiff have avoided his injury if he had paid attention to his work which he was performing at the time he was injured? Ans. No; for reason of inexperience.
“7. Was not plaintiff’s injury caused by letting his hand follow the paper which he was passing up between the lining dryers of defendant’s machine to the finisher of said machine? Ans. Yes.
“8. Was plaintiff’s hand caught in the broken pieces of paper, and his hand and arm thereby carried in between the lining dryers and defendant’s machine? Ans. No.
“9. If your answer to the above interrogatory, No. 8, is yes, state how his hand was caught. Ans. -.
“10. Was not plaintiff employed by defendant as ‘cutter boy’ on paper machine No. 96? Ans. Yes.
“11. Was it not plaintiff’s duty, among other things, to assist in passing the paper in process of making on paper machine No. 96, when the same became broken, over, under, and between the dryers thereof, including the lining dryers, where this injury occurred? Ans. Yes.
“12. Was not plaintiff employed by defendant in the machine-room in which paper machine No. 96 is located, in which were employed, at the time of his injury, Martin Woodall, Wilbur Hiatt, and Augustine Scully. Ans. Yes.
“13. Did not the work in said machine-room require the co-operation of the plaintiff, said Martin Woodall, Wilbur Hiatt, and Augustine Scully? Ans. Yes.
“14. Did it not require the combined labor of the plaintiff said Martin Woodall, Wilbur Hiatt, and August*427 ine Scully, to take care of said paper machine No. 96 and the product therefrom? Ans. Yes.
“15. Did not Martin Woodall, machine-tender on machine No. 96, show the plaintiff how to perform his work as ‘cutter-boy’? Ans. No.
“16. Did not Wilbur Hiatt, finisher on said machine, show the plaintiff how to perform his work as ‘cutter-boy’ and how to pass the paper over, under, and between the dryers on said machine? Ans. No.
“17. Did not Wilbur Hiatt, just prior to the time plaintiff was injured, warn plaintiff to be careful, to look out for his hand? Ans. Yes.
“18. Did not Wilbur Hiatt frequently warn plaintiff of the dangers of passing the paper up between the dryers? Ans. Yes.
“19. Did not Wilbur Hiatt show the plaintiff, before his injury, how to pass the paper up between the dryers? Ans. No.
“20. Did not Augustine Scully, ‘cutter boy,’ on said machine No. 96, at which plaintiff was employed, show the plaintiff how to perform his duties in passing the paper over, under, and between the diyers of said machine prior to his injury? Ans. No.
“21. Did not Augustine Scully warn and point out to the plaintiff, prior to his injury, the perils and dangers of his service, and of the work which plaintiff was performing at .the time of his injury? Ans. No.
“22. Did not Wilbur Hiatt, the finisher on said machine, warn and point out to the plaintiff, prior to his injury, the perils and dangers of the service which plaintiff was performing at the time of his injury? Ans. No.”
The answers to interrogatories can be held to override the general verdict only when they are in irreconcilable conflict with it. The theory of the complaint is not that
We can not agree with appellant’s counsel that these facts show the appellee to have been guilty of such negligence as would preclude him from recovering in case the negligence of the appellant, in failing to give the ap
It may have been true, therefore, that just prior to the injury the appellee was warned “to be careful” and to “look out for his hand,” and yet with the reasonable exercise of his faculties he might still have been unable to so perform his duties as to avoid the danger. Simply warning the appellee of danger generally, by the appellant, did not excuse the latter from pointing out the particular danger of this employment and to so instruct the appellee as to enable him to avoid such danger. Nor is the finding, that the appellee was so warned, in conflict with the implied finding in the general verdict, that appellee did not receive any instructions from the appellant or its servants concerning the duties he had to perform and the dangers and hazards attending his.employment at the time of the injury.
A warning to an ignorant and inexperienced man under such circumstances would be of little avail. A man cast adrift upon the sea in a vessel will profit very little
It appears that the appellee was injured while performing a task assigned him in connection with and in the line of his employment. There is nothing in the answers to the special interrogatories which shows or indicates that the appellee did not make proper and reasonable use of his faculties according to the knowledge and information he possessed regarding the machinery and its attendant dangers, or in failing to heed any warnings given him. Nor can we say that there is any finding to the effect that appellee was injured while negligently letting his hand follow the paper which he was passing up between the dryers.
That it was the appellee’s duty, among other things, to pass the paper, or assist in passing it, when the same became broken "over, under, and between the dryers” of the machine, is clearly enough found by the jury’s answer to interrogatory No. 11. That in this instance he did so recklessly or negligently, is not apparent from the jury’s finding.
The soundness of the general rule of law asserted by the appellant’s counsel, to the effect that when the dan
There was no error in overruling the appellant’s motion for judgment notwithstanding the general verdict.
The next question presented is whether the court erred in overruling the appellant’s motion for a new trial.
Among the causes assigned is the one that the court erred in giving certain instructions.
It is insisted that the court erred in giving the twelfth instruction, which is to the effect that in estimating the appellee’s damages, if any were found, they should take into consideration the extent of appellee’s injury, his bodily and mental suffering, and the fact ‘ 'that he is deprived of the pleasure and satisfaction in life that those only can enjoy who are possessed of a sound body and the free use of all its members; also, the loss of time, if any, the appellee has been or may be disabled in earning a livelihood or support. ’ ’
We do not think there was any error in the giving of this instruction. Town of Nappanee v. Ruckman, 7 Ind. App. 361.
We do not regard the instruction as objectionable for
Instructions numbered 8, 9, 10 and 11 are assailed. The bill of exceptions affirmatively shows, however, that each of these instructions was given at the request of the defendant, and this being true the defendant (appellant) can not now complain. The statement may have been made erroneously, but the record imports absolute verity and we are not permitted to look beyond it..
Some complaint is made because the jury were not returned to their room and required to answer the interrogatories more definitely. The objection is not tenable. The answers to the questions pointed out were sufficiently definite and easily understood.
It is finally contended that the verdict is not supported by the evidence. We have examined the evidence, and think it fairly tends to sustain the verdict. While it is, perhaps, not as satisfactory in all respects as might be desired, we can not say that it is entirely lacking in any material point required to be proved.
The judgment is affirmed.