57 Ind. App. 175 | Ind. Ct. App. | 1914
Appellee recovered judgment against appellant for personal injuries. On appeal from this judgment the errors assigned and duly presented by the briefs call in question the action of the court in overruling the demurrer to the first paragraph of appellee’s amended complaint and also to the fourth paragraph of amended complaint; overruling appellant’s motion for judgment on the answers of the jury to the interrogatories, for a new trial and in arrest of judgment.
Appellant insists that each paragraph of complaint is insufficient because the facts averred show that the cause of appellee’s injury was one of the ordinary risks incident to his employment and was therefore assumed by him. Also that it affirmatively appears from the complaint that appellee was guilty of negligence which contributed to his alleged injury. Each paragraph of complaint is sufficient to state a cause of action against appellant and we do not deem it necessary to set the averments out in full or to enter into a detailed discussion of the reasons for this conclusion because of the similarity of the complaint to one held good by a recent decision of our Supreme Court. Grand Trunk, etc., R. Co. v. Poole (1911), 175 Ind. 567, 93 N. E. 26.
The substance of the jury’s answers to the interrogatories is as follows: That appellee was employed by appellant as switchman in Huntington yards for eleven months prior to his injury on November 15, 1906; that there were a large number of tracks in said yards used for storing, switching and repairing cars; that in moving southward or eastward on the lead to the middle yard there was a switch connecting with the repair track running to the east and after passing this there was another switch connecting with track No. 9, which ran to the south; that there were frogs connected with said switches; that on the morning of Novem
If however, when so considered, the answers show a failure to prove a material fact upon which the plaintiff’s right of recovery depends, or establish a material fact or facts, which as a matter of law, defeat the plaintiff’s recovery, then the answers are in irreconcilable conflict with the general verdict and the motion should be sustained. Chicago, etc., R. Co. v. Hamerick (1912), 50 Ind. App. 425, 439, 96 N. E. 649; McCoy v. Kokomo R., etc., Co. (1902), 158 Ind. 662, 64 N. E. 92; Wabash R. Co. v. McNown (1913), 53 Ind. App. 116, 99 N. E. 126, 100 N. E. 383.
The answers here do not show that appellee had actual knowledge of the condition of the unblocked frog which caught his foot and caused the injury, nor do the facts found which show his opportunity for knowing the conditions of the yard generally, and the finding that he could have seen the unblocked frog by looking, when considered, in connection with averments of the complaint which show the necessity for prompt and hasty action in doing the work appellee was ordered to do just before his injury, and the custom of blocking frogs and his reliance thereon, enable the court to declare as a matter of law that he assumed the particular risk that caused his injury. Baltimore, etc., R. Co. v. Kiser (1912), 51 Ind. App. 58, 94 N. E. 330 and cases cited; Consolidated Stone Co. v. Summit (1899), 152 Ind. 297, 301, 53 N. E. 235. The language of the Supreme Court of the United States in Chicago, etc., R. Co. v. Brown (1913), 229 U. S. 317, 33 Sup. Ct. 840, 57 L. Ed. 1204, is applicable here: “The movement of trains requires prompt action, and we can not hold that as a matter of law Brown, in leaning forward to remove a pin which would have yielded to his effort, was guilty of negligence because he did not anticipate that his foot might slip and be caught in an open •
Appellee testified that he had been switching eleven months prior to his injury and that he was injured on November 15, 1906, while working at the west end of the . yards; that Maloney, who had charge of the crew, called to him to close the knuckle on a car standing on track No. 9 so it could be shoved along without coupling; that he immediately attempted to do so by stepping between the rails at the end of the standing car and caught his foot in the frog and before he could get out was caught and injured; that the
The jury in arriving at a verdict may consider all the facts and circumstances proven by the evidence and may draw therefrom such inferences as are reasonably warranted thereby. In this case by the general verdict, the jury not only found that the custom of blocking frogs existed, but that appellee relied thereon, and that the unblocked frog was the proximate cause of his injury. On the facts of this case, the questions of appellee’s contributory negligence and assumption of risk, were rightly submitted to the jury for determination under proper instructions by the court. The jury found the facts and drew the inferences necessary to support the verdict. There is evidence tending to prove the material facts and to warrant the inferences drawn by the jury, and we can not say therefore, that there is a failure of proof or that the inferences drawn are unreasonable.
Some objections are raised to instructions given and refused. "We have carefully examined the instructions and in view of the issues and evidence do not consider the questions suggested of sufficient importance to require detailed consideration. The instructions when fairly construed are not open to the objections urged. Those given fairly and fully state the law applicable to the issues and the evidence. No error prejudicial to appellant was committed, either in giving or refusing instructions.
The objection was rightly sustained. The excluded statement was not only a “communication to” the attending physicians “in the course of their professional business” but was also a statement of the physicians themselves. After appellant’s signature the instrument contains the following: “If operation was performed did the injured person consent: (Ans.) None at this writing. Give date of operation, names of operating surgeons, witnesses to operation: (Ans.) None at this writing”. Then follows the certificate and signatures of the “attending physicians”. This was clearly an attempt to get before the jury by this indirect method a confidential communication of appellee and also the statement of the physicians made at the same time and under tbe same circumstances.
The other questions suggested by the briefs are in effect disposed of by what we have already said and do not justify the further extension of this opinion. No error prejudicial to appellant is shown by the briefs, and the judgment is therefore affirmed.
Note. — Reported in 104 N. E. 50. As to risks assumed by servants under master and servant law, see 52 Am. Eep. 737. As to tbe duty of a railroad company to block frogs, switches and guard rails, see 9 Ann. Oas. 498; 14 Ann. Cas. 696. As to servants’ assumption of obvious risks of hazardous employment, see 1 R. E. A. (N. S.) 272. Eor servants’ assumption of risk of danger imperfectly appreciated, see 4 R. E. A. (N. S.) 990. See, also, under (1) 26 Cyc. 1397, 1399; (2, 3, 4) 38 Cyc. 1927; (5, 6) 26 Cyc. 1513; (7) 20 Cyc. 1128; (8) 26 Cyc. 1478, 1482, 1513; (9) 40 Cyc. 2383; (10) 40 Cyc. 2396.