37 Ind. App. 518 | Ind. Ct. App. | 1906
Appellee, who was plaintiff below, recovered a judgment against appellant for personal injuries received while in its employ, alleged to have resulted from its negligence. The complaint was in a single paragraph, to which a demurrer was addressed and overruled. Answer in denial. Trial by jury, resulting in a general verdict for appellee. Appellant’s motion for a new trial was overruled. At the conclusion of the evidence appellant moved that the court instruct the jury to return a verdict in its favor, and this motion was also overruled.
Overruling the demurrer to the complaint and the motion for a new trial are assigned as errors.
The complaint alleges that appellant was in the business of manufacturing enameled ware; that at and prior to June 24, 1903, appellee was in appellant’s employ “in and about the manufacture of its goods and wares;” that in the process of such manufacture the appellant immersed its goods in their unfinished state in certain dangerous acids, contained in large tanks; that said tanks were supplied with acids from large bottles; that about the bottles was constructed a framework or crate of wood; that the bottles containing the acid were conveyed to the tanks by means of trucks; that in loading the bottles upon the trucks it was necessary to take hold of the framework about the bottles, and by means thereof tip the bottles to one side,- so as to permit the truck to pass under and receive them; that it was one of appellee’s duties to aid his fellow workmen in
The objections urged to the complaint are (1) that it shows that the injury of which appellee complains was the result of a risk assumed by him; (2) that the general allegation in the complaint of want of knowledge on appellee’s part of the defective and insecure condition of the crate is overcome by the specific allegations of the complaint showing knowledge on his part, or, that he could have known by the exercise of ordinary care.
An averment in the complaint that the servant did not know of such defect or danger is sufficient as a matter of pleading to rebut or deny not only actual knowledge, but also implied or constructive knowledge or notice. Baltimore, etc., R. Co. v. Roberts (1903), 161 Ind. 1; Consolidated Stone Co. v. Summit (1899), 152 Ind. 297; Chicago, etc., R. Co. v. Richards (1901), 28 Ind. App. 46.
Two of the reasons assigned for a new trial are (1) that the verdict was not sustained by sufficient evidence; and (2) that it was contrary to law. Under the propositions
As stated by appellee: “I tipped the crate over so the truck could be run under it. The cleat gave way, and the bottle fell back, and the acid flew in my face and eyes, and after that I could not see anything. I never saw the box [crate] again. * * * The cleat appeared to be sound when I took hold of it. I did not know it was unsafe or loose. It appeared to be all right.”
This is all the evidence that throws any light upon the manner in which appellee was injured, and upon this evidence counsel for appellant insist that it was the duty of the court to direct a verdict. We must determine from these facts whether as a matter of law they acquit appellant of actionable negligence. If they do, then it was error to refuse the instruction. But, under the evidence before us, the question of appellant’s negligence and appellee’s freedom from contributory negligence becomes a mixed question of law and fact. We can not say that the evidence is without conflict. On the contrary, upon the vital question at issue, there is a sharp conflict. This being true, that question should have been submitted to the jury under proper instructions.
Counsel for appellant make some effort to discredit the evidence of appellee’s father, upon the theory that it is not shown that the crate and bottle which he saw the next day, and with the cleat off the crate, were the ones that
There is evidence that the accident was caused by the cleat’s coming off of the crate, and that the reason it came off was because it was rotten. Appellee testified that it looked all right to him. He was not bound to make an inspection of it, for he was only chargeable with the duty of observing defects that were visible, open and apparent. Linton Coal, etc., Co. v. Persons, supra; Gould Steel Co. v. Richards, supra; Baltimore, etc., R. Co. v. Amos, supra. If the cleat, or the crate, was defective, by reason of which the former came off, the defect might have been discovered by a reasonable inspection, and, as we have seen, this duty does not rest upon the servant, but upon the master. Louisville, etc., R. Co. v. Quinn (1896), 14 Ind. App. 554.
The rule is firmly established in this jurisdiction that where there is a conflict in the evidence, upon a material question at issue, it is an invasion of the province of the jury for the trial court to direct a verdict. This court, in Hamilton v. Hannemam, (1898), 20 Ind. App. 16, said: “It is within the power of the trial court to control or direct
There was no error in refusing to give the instruction. The judgment is affirmed.