Central Indiana Railway Co. v. Clark, 63 Ind. App. 49

Central Indiana Railway Co. v. Clark

63 Ind. App. 49 | Ind. Ct. App. | 1916

Ibach, J.

Appellee recovered damages for injuries alleged to have been caused by appellant’s negligence. The *51errors assigned and argued all arise upon the court’s overruling of appellant’s motion for new trial. One charge of the complaint was "that appellant furnished appellee, an inexperienced minor, with a drift pin made from unsuitable material and ordered him to drive it through a hole in a boiler that he was helping to mend; and that the pin broke when he struck it and, by reason of the faulty material, a piece of the broken pin flew off and hit his eye, injuring his vision. The cause is brought under the act of 1911, (Acts 1911, ch. 88, p. 145, §8020a et seq. Burns 1914).

1. Objection is first made to the refusal to give instruction No. 15 on appellant’s request. This instruction is as follows: “If you find from a preponderance of the evideuce that the defendant maintained in its shop where the plaintiff was working a tool room in which was kept a supply of drift pins and such other tools as were required for use in its shop, and if you further find that the boiler makers, including the said Plannigan, were each provided with a tool box in which were two or more drift pins for their use in said shop in patching or mending boilers, and if the evidence shows that said Plannigan, with whom said Clark was working at the time of the injury, a few days prior to said injury Avent into the the blacksmith shop and secured a certain pin from the defendant’s blacksmith in said shop which pin afterwards broke and thereby injured plaintiff’s eye, then I instruct you to find for the defendant.”

2. There was no error in refusing this instruction. This instruction was based on the fellow-servant doctrine, and this is abolished by §1 of the act of 1911, supra, under consideration. Further, the jury found by answer to interrogatories that Plannigan was given charge of the boiler mending and had authority to direct the work. So far as appellee is concerned the act of Plannigan in getting the drift pin in question from the blacksmith shop rather than from the tool room was the act of appellant.

*523. 4. 5. *51Objection is also made to instruction No. 13 given of the *52court’s own motion by which the jury was told, among other things, that it was the duty of appellant to furnish safe tools and appliances for its servants to work with. This portion of the instruction is too broad a statement of the law although, when considered in connection with the other instructions on the same point, it is doubtful whether the jury could have been misled into believing that appellant was an insurer of appellee’s safety as contended by appellant. However, the complaint alleges, and it is found by the jury in answer to interrogatories, that the drift pin furnished by appellant to appellee to work with was made of a file, which is not proper material, and that it was not a proper and suitable drift pin for the purpose for which it was being used when broken, for the reason that it was too hard. Such finding is supported by the. evidence. If there was error in the giving of the instruction, it is shown by the answers to interrogatories that such error was harmless, since the jury cleax’ly found such a coxxditioxx of the tool furnished that appellant is liable. When the pin was proved defective, the burden was oxx appellant to prove that it did not kxxow of the defect. Acts 1911 (§3), supra.

6. When considered with the other instructions given, there was no error'in that portion of the court’s instruction No. 10, which stated to the jury that if it should “find from the evidexiee that the defexxdant was guilty of any of the acts of xxegligence charged ixx the complaint, axxd that such act of negligence was the proximate cause of the plaintiff’s injury, then your verdict should be for the plaintiff, if he has otherwise made his case, it is xxot incumbent upon plaintiff to prove all the acts of negligence charged in the coxnplaint. ’ ’ There were several distinct acts of xxegligenee which were charged in the complaint, any one of which might have beeix sufficient to make appellant liable. Further, the jury in answer to interrogatories fouxxd appellant *53had committed enough negligent acts charged to establish liability.

7. There was no error in the giving of instruction No. 17 whereby the consideration of certain evidence was withdrawn from the jury. The court had previously sustained the motion of appellee to strike out all of the testimony which was withdrawn by the instruction, and the record shows that such motion was sustained. The action of the court in sustaining such motion is not assigned as error. There could be no error in withdrawing from the jury by an instruction evidence which had already been stricken out on motion.

8. 9. 10. Instruction No. 16 given by the court told the jury in assessing damages, if any should be found, to consider, among other things, “the plaintiff’s ability to earn money in the support of himself, prior to his injury, and the ability of the plaintiff to earn money since the injury, as shown by the evidence; any expense the plaintiff has incurred in and about healing or curing the injuries which he has sustained, by way of physician’s bills, expenses for medicine, and necessary care bestowed upon him, if any, as disclosed by the evidence.” There was no error in allowing recovery for a diminished ability to earn money. It is objected that as appellee is a minor, the doctor bill is a debt of the father and not of appellee. However, the instruction only allowed a recovery for expenses actually incurred by appellee, and though there was testimony that the doctor had charged $37 for his services, it was not. in evidence to whom the charge was made. Although the father is liable for necessaries furnished a minor, yet the obligation for such is also a debt of the minor, and it is not improper to allow him to recover for his medical expenses. Such recovery would cut off the right of the father to recover. City of Columbus v. Strassner (1894), 138 Ind. 301, 34 N. E. 5, 37 N. E. 719; Board, etc. v. Castetter (1893), 7 Ind. App. 309, 33 N. E. *54986, 34 N. E. 687; 22 Cyc 581, 582. The evidence was sufficient to sustain the verdict.

Judgment affirmed.

. Note. — Reported in 112 N. E. 892. Master and servant: (a) degree of care required of master in providing appliances, 1 Ann. Cas. 340; (b) master’s knowledge of defective appliance, effect, 98 Am. St. 303; (c) right of recovery by infant for loss of services or diminished earning capacity during minority, 6 L. R. A. (N. S.) 552.