42 Ind. App. 588 | Ind. Ct. App. | 1908
Appellee sued for damages for injuries received by him, alleged to have been caused by a rotten guy-rope, while in the employ of appellant, in working on the construction of a bridge over appellant’s railroad tracks. A demurrer for want of facts was overruled to the first paragraph of the complaint, and an answer ■ of general denial filed thereto. The second paragraph was .withdrawn. Upon the issues thus formed the cause was submitted to a jury for trial, and a verdict was returned in favor of appellee 'for $1,100.
Appellant asks a reversal because of the action of the court in overruling its motion for a new trial.
Appellee was in the proper place in which to do the work. The foreman had never made an examination of the rope. •Appellee did not examine the rope to see its condition. He had seen it used in raising timbers on that bridge, but never looked at it specially. He knew that it was used generally in raising bents, but did not know that it was defective.
There appears to have been no examination of the rope iq question, or of any of the ropes used, before the accident. The uses to which they had been put were well calculated to weaken them. Prom the circumstances the jury might well have found appellant negligent. Under the statute, foreman Cooper was a vice-principal, and not a fellow servant of appellee. This action is brought under subdivision one of §8017 Burns 1908, Acts 1893, p. 294, §1.
The verdict is not without support of evidence, and the instructions considered together correctly state the law; and, in view of the evidence, there was no prejudicial error in the refusal of the court to give those requested.
Judgment affirmed.