17 Ind. App. 573 | Ind. Ct. App. | 1897
Appellee seeks to recover damages for injuries caused by appellant’s negligence.
Appellant’s counsel made application for a supersedeas, and filed a brief upon that application. In that brief some of the errors assigned are briefly discussed, while others are simply mentioned, with the statement that they will be discussed in the regular brief to be thereafter filed. As no regular brief was filed, the alleged errors not argued in the supersedeas brief are deemed waived.
It is argued that neither paragraph of the complaint states facts sufficient to constitute a cause of action.
Appellee was in the employ of appellant, and was engaged in operating certain rolls used for converting pig iron and other iron into what is known as merchant iron. The first paragraph of the complaint proceeds upon the theory that the rolls were worn and out of repair, and the second paragraph, that the rolls were not only worn and out of repair, but that they were negligently constructed and put together.
It is argued that the specific allegations of the first paragraph show that the appellee had notice of the defective condition of the rolls, and that by continuing in the service assumed the risk.
The paragraph shows, that the appellant, for thirty days before the accident, knew of the defective condition of the rolls, and that one week before the accident the appellee notified the appellant of their condition,
The general rule is, that a servant assumes all the ordinary risks of the service he enters. And it is not enough that a servant, after he learns of the defect, simply notifies the master and continues in the service. But if the servant knows of the defect, and notifies the master, and the master expressly or impliedly promises to remedy the defect by making necessary repairs, and the servant relies upon such promise and continues in the service, and within a reasonable time after the promise to repair has been made is injured, he will not be held to have assumed the risk.
“The employe who continues in the service of his employer after notice of a defect augmenting the danger of the service, assumes the risk as increased by the defect, unless the master expressly or impliedly promises to remedy the defect. The promise of the master is the basis of the exception. If the promise be absent the exception cannot exist.” Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20; Rogers v. Leyden, 127 Ind. 50; 3 Elliott, Railroads, section 1296 and cases cited; Romona Oolitic Stone Co. v. Phillips, 11 Ind. App. 118; Indianapolis Union R. W. Co. v. Ott, 11 Ind. App. 564; Hough v. Railway Co., 100 U. S 213.
The second paragraph of the complaint proceeds upon the theory that the rolls at which appellee was working when injured were defective, in this: that at the time the rolls were put up the appellant wrongfully, willfully, and negligently put in two rolls for the middle and top rolls that were exactly of the same size; that the injury was caused by reason of this de
If an employe, when he accepts employment, knows that he is to work with defective machinery, he assumes the risk of the service. And although he may accept employment where he is to use defective machinery, and the defect is at the time known to the master and is not disclosed to the employe, if the defect is of such a character that it is equally open to the observation of the. employe and the master, they will be held to stand on a common footing, and in accepting such employment, the employe assumes the risk. But this rule does not apply where the defect is not open to observation, and where it could not have been discovered by the use of ordinary care.
“It is the theory of the decisions that the servant takes the risk only of what may be denominated ‘seen dangers,’ but by this is understood nothing more than that a servant is entitled, when there is any danger connected with the machinery or employment in which he is engaged, and which ordinary inspection and carefulness on his part will not enable him to avoid, to have it distinctly announced to him. It is meant that, as to such danger, it is particularly the duty of the employer to warn him. He is plainly entitled to have them pointed out when he enters upon the service. When this is done in good faith they be
Appellant’s counsel say that the special verdict is insufficient to justify the judgment. The objections to the verdict as stated in appellant’s brief are: First, that it fails to show appellant had any knowledge, or was aware of the fact that the rolls complained of were defectively constructed, or out of repair; second, that appellee ever notified appellant prior to his injury that the rolls were out of repair, or that appellant promised to repair them; third, that the verdict shows that the appellee was, at the time of the accident, a<nd had been for six months prior thereto, perfectly acquainted and familiar with the construction and condition of the rolls; and fourth, that the verdict shows that the injury was occasioned by one of the ordinary risks of the employment.
These are the only objections made to the special verdict, and appellant’s brief contains only a statement of the objection. The verdict is quite lengthy, and it is not necessary that it be set out in full. That appellant’s objections are not well taken is apparent from the following statements in the verdict: “That the said eight-inch mill above described in said defendant’s manufacturing plant, were not repaired, nor the edges of said grooves ragged, nor the fillets therein dressed, nor the shoulders on the grooves turned up, for the time aforesaid, and they were by constant use, worn out and beaten down, as above described, became and were for a period of three months before the 31st day of May, 1894, greatly out of repair and more dangerous for the roughers to work with and about. * * * * That the said roller so put into said mill,
Appellant’s counsel has not argued in the supersedeas brief any of the questions arising on the ruling on the motion for a new trial, but states that these questions are reserved for the general brief. As no general brief has been filed, these questions are not presentéd under the rules of practice. Louisville, etc., R. W. Co. v. Miller, 140 Ind. 685.
Finding no error in the record, the judgment of the circuit court is affirmed.