37 Ind. App. 413 | Ind. Ct. App. | 1905
Lead Opinion
This action was brought by Frank Carmichael, a minor, suing by his next friend Bridget Carmichael. The Consolidated Stone Company and the appellant were made defendants. During the trial appellee dismissed as to the Consolidated Stone Company, proceeding to final judgment against appellant.
The complaint was in one paragraph. The demurrer to it was overruled and issue formed by general denial. With its verdict the jury returnéd answers to certain interrogatories. Appellant unsuccessfully moved for judgment thereon, and appeals from a judgment in accordance with the general verdict for $2,500.
Errors assigned are based upon the overruling of the demurrer to the complaint, the motion for judgment notwithstanding the general verdict, and the motion for a new trial.
The objection to the complaint is that it does not show that Carmichael went between the machine and wall in obedience to Moore’s order, or that he was there performing any duty thus enjoined, or that Moore knew he was there at the time the signal to hoist was given. The averment is that the bales were attached by order of Moore. The
In Grand Rapids, etc., R. Co. v. Pettit (1901), 27 Ind. App. 120, a distinction is drawn between general and special orders. An extended quotation is made from Mobile, etc., R. Co. v. George (1891), 94 Ala. 199, 10 South. 145. In this case it was said: “There being no evidence that the yardmaster gave plaintiff, any order or direction to uncouple the car from the engine at the time of his injury, he has failed to establish one of the essential statutory propositions.”
There is a substantial difference between the general duty to do a certain class of work and the duty of doing some portion or detail of such work at a stated time or place, or in accordance with specific directions relative thereto, to which the order of the person in charge must frequently be directed. Indiana, Mfg. Co. v. Buskirk (1904), 32 Ind. App. 414. Lifting and turning the machine was the proximate cause of the injury, and directing the appellee into a dangerous situation and ordering the machine lifted and turned without exercising reasonable care to learn that he had left such position, together constituted the actionable wrong complained of Evansville, etc., R. Co. v. McKee (1885), 99 Ind. 519, 50 Am. Rep. 102; Louisville, etc., R. Co. v. Wagner, supra; Thaclcer v. Chicago, etc., R. Co., supra.
Judgment affirmed.
Rehearing
On Petition eor Kehearing.
Appellant’s counsel, in their forceful brief on this petition, assail certain instructions. It seems to us that the case was fairly left to the jury, and, while the instructions are not beyond criticism, the distinctions made are not such as would be likely to influence the result.
Petition overruled.