38 Ind. App. 552 | Ind. Ct. App. | 1906
Action by appellee to recover damages resulting to him through the alleged negligence of appellant. His complaint was in two paragraphs, to each of'which a demurrer- was overruled. Answer in denial, trial by jury, and general verdict for appellee, and with the general verdict the jury found specially by answering interrogatories submitted to it. Appellant’s motions for judgment in its favor on the answers to interrogatories and for a new trial were overruled. All of the above specified rulings are assigned as errors.
The sufficiency of the first paragraph of complaint is not questioned in the briefs, but in view of the contention between opposing counsel as to which paragraph of complaint the judgment rests upon, it is important to state the facts relied upon in the first paragraph as to the acts of negligence alleged. It is therein alleged that appellee was in the employ of appellant, and that under such employment it was his duty to run- and control a derrick used in lifting stones from one place and carrying them to another; that the derrick was out of repair in this, to wit, that the boxings and bearings in which worked a heavy upright metal rod, on
In the second paragraph of complaint appellee sets out in full the duties he was called upon to perform by reason of his employment, and describes the manner in which heavy stones are lifted by dogs and chains attached to a
As to the first paragraph of complaint appellant has not pointed out any objection.
The following facts, pertinent to the matter under consideration, are exhibited by the answers to interrogatories: The steam-power had nothing to do with turning the derrick, but was simply used to raise and lower the stone swung from the boom. Appellee was the derrick runner, and in charge of it and the men operating it. It was his duty to direct what stones to lift and move, as to how they were hooked, how high they were to be raised, and how . far moved, and when to be let down. He was not responsible for the management of the derrick in handling stones. At the time of the accident the boxings and bearings on the upright rod on the shaft were worn, old, defective and unsuited for use, so that they would not hold the rod in perpendicular, but allowed it to become loose, so that the cogwheels on it would not catch, but would slip and get out of their places. The cogwheels were old and defective, and would not catch on each other. The derrick was turned solely by the efforts of the man on the platform operating the propeller, and could have been stopped solely by him if the derrick had been in order. The stone which was being moved, and which broke and injured appellee, did
Columbus Prow was in appellant’s employ, and under such employment it was his duty to make inspection of stones to ascertain if they were safe to lift with a derrick. Appellee was under his direction, and bound to obey his orders. Prow inspected the stone that broke, and directed appellee to move it with the derrick, and he had full charge of appellee and the derrick crew at the time of the accident. The only authority that appellee had as derrick.runner was to give signals for-the operation of machinery when a stone
The following interrogatories and the answers thereto, which relate particularly to the question we are now considering, we give in full: “Ho. 83. Would not the plaintiff’s injuries have been prevented, if the derrick had not been defective and out of repair, by James Mundy, the bull wheelman stopping the rotary motion of said derrick before the swinging stone reached the stack where plaintiff was working? A. Yes.” “Ho. 95. Immediately on discovering that the boxing and cogs had become defective, did not the plaintiff, by signal, notify James Mundy to stop the boom from turning further, and did he not in a few seconds thereafter notify Yeskey to stop the power? A. Yes. Ho. 96. On signal from the plaintiff did not James Mundy immediately attempt to stop the movement of the boom from turning, and failed because of the defective condition of the cogs and boxing ? A. Yes. Ho. -97. Did not the boom pole, because of the defective condition of the hoxing and slipping of the cogs, go round westward and northward, gaining speed as it went, until the stone broke near where the plaintiff was standing; there breaking and dropping on another stone which tilted the north end upward, catching plaintiff’s right foot and crushing it off ? A. Yes. Ho. 98. Was not the defective condition of the cogs and boxing one of the direct causes of plaintiff’s in
Prior to the day of the accident appellee notified appellant’s ledge foreman, Prow, that the boom pole of the derrick would not work because of defects in the boxings, and appellant, through its foreman, promised appellee if he would remain in its employ the defects would be repaired the next morning. This was on June 19, 1901, and the following morning some repairs were made on said boxing, and the assistant master mechanic, who made the repairs, stated that the defects were repaired all right, and told him to go ahead and work. Appellee relied on this statement, continued in appellant’s employ, and until the time of his injury believed that the machinery was safe to work said boom. The jury also found that the boxing in which the staff turned again became defective when the boom was ’lifting the stone which injured appellee. The jury also found that appellee discovered that the stone was coming rapidly toward him, and that he quickly used all reasonable effort to avoid injury by running from it.
The effort made to repair the defects in the machinery was ineffective because the boxing still remained loose, and the cogs slipped at the time of plaintiff’s injury. The jury also found that Yeskey was employed as a signal boy, had been there two or three days, but that appellant failed fully to instruct him as to his duties. He was only thirteen years old. He was inexperienced and incapable of acting as signal boy. Appellant knew these facts. At the time of the injury Yeskey had his face turned from the derrick runner, and he failed to convey the signal given to the power men. If Yeskey had conveyed the first signal the boom could have been stopped in lifting the stone to a point below the top of the pile on which it broke. One of
We have given all of the material facts specially found, so that we may determine whether they affirmatively show that the judgment rests upon the first paragraph of the complaint, and also whether appellant was entitled to judgment on the answers to interrogatories notwithstanding the general verdict.
The facts exhibited by the answers to interrogatories establish every act of negligence alleged in the first paragraph, except that the cause of the breaking of the stone that was being lifted, was the fact that it struck another stone before it did break. The fact, however, that it did break is made manifest, and the fact that it broke without striking afiother stone first is not of material importance. All of these facts, considered together, clearly show that the verdict and judgment are based upon the first paragraph. Appellee was placed in a perilous position without any fault on his part. He appreciated the danger and made every reasonable attempt to avert its consequences. He was imperiled by reason of the fact that the machinery with which he was working W'as so defective that it could not be controlled, and he was lulled into a place of danger by an assurance on the part of appellant, through its authorized servant, that such machinery had been repaired and made safe.
Having reached the conclusion that the verdict and judgment are grounded on the first paragraph, it is unnecessary for us to determine the sufficiency of the second paragraph; for, if it is not sufficient, the overruling of the demurrer is not a reversible error.
The facts specially found support the general verdict as to all material matters, and hence appellant’s motion for judgment on the answers to interrogatories was properly overruled.
The judgment is affirmed.