55 Ind. App. 384 | Ind. Ct. App. | 1914
Lead Opinion
This is a common-law action by appellee Dautrich to recover damages for injuries alleged to have been caused by the negligence of appellant in failing to furnish him with a reasonably safe place in which to work. Dautrich was injured by the falling of an elevator upon which he stepped to extinguish a light, in the line of his duty as night watchman in the printing establishment of appellant, located in the city of Indianapolis. The jury returned a verdict for appellee with damages assessed at $2,000.
It is very earnestly insisted by appellant that the court erred in overruling the demurrer to the complaint because: (1) there is no allegation that appellant’s negligence was the proximate cause of the injury; (2) the complaint “affirmatively shows that it was a freight elevator and as such it was not required by law to be provided with safety devices”; (3) “in a ease such as the one at bar the complaint must negative the assumption of risk and except by way of recital this is not done and this is not sufficient in
We find no error in the record which warrants a reversal. Judgment affirmed.
Dissenting Opinion
Dissenting Opinion.
I can not concur in the majority opinion in this ease. The trial court committed reversible error in giving to the jury on its own motion instruction No. 4. I am aware of the general rule that a single instruction need not contain the whole law of the case, that each instruction is not to be analyzed singly, but all the instructions given upon any particular subject pertinent to any case are to be taken and considered as an entirety and if as a whole they correctly state the law, the giving of one inadequate, when considered apart from all the others, will not be deemed reversible error. The reason for the above doctrine is quite apparent, but it has no application to instruction No. 4 involved in this appeal.
This is not a case where it can be said that the instruction contained a correct statement of the law as far as it went. Here the jury was given to understand the different things the plaintiff would be required to establish to enable.
Note.—Reported in 103 N. E. 953, 956. See, also, under (1) 29 Cyc. 565; (2) 31 Cyc. 101; (3) 38 Cyc. 1711; (4) 26 Cyc. 1494; (5) 38 Cyc. 1598; (6) 26 Cyc. 1496; (7) 40 Cyc. 2524; (8) 38 Cyc. 1503; (9) 38 Cyc. 1509; (10) 38 Cyc. 1440; (11) 3 Cyc. 348.