34 Ind. App. 163 | Ind. Ct. App. | 1904
The complaint in this action charges that on November 19, 1902, having been employed three or four weeks prior thereto to do all kinds of general work in and about the planing-mill of appellants, while in the proper discharge of his duty, the plaintiff was directed by an employe of appellants to go to a certain table in the mill, on which a ripsaw was located and in full operation, and bring from said table to said employe a hand planer which was lying close to the ripsaw; that he went as directed, and,
A demurrer to the complaint for want of facts was overruled. Issues were joined by an answer in general denial. A trial was had at the December term, 1902, of the court, but the jury failed to agree. The case was again tried at the March term, 1903, resulting in a verdict and judgment for the appellee in the sum of $3,000. At the close of all the evidence appellants moved the court, in writing, to instruct the jury to return a verdict in their favor, which motion was denied. The evidence being closed appellants moved that the jury be permitted to inspect, in charge of the sheriff, the premises involved in the action. This motion was denied. Appellants’ motion for a new trial was overruled.
Appellants assign and rely upon as error the action of the court: (1) in overruling the demurrer to the complaint; (2) in overruling the motion to permit inspection of the premises; (3) in refusing peremptorily to instruct the jury to return a verdict for the appellants; (4) in overruling the motion for a new trial. .
The fact that some other cause operates with the negligence charged against defendants does not relieve the negligent party from liability. The efficient cause is the proximate cause. Reid v. Evansville, etc., R. Co. (1894), 10 Ind. App. 385, 53 Am. St. 391; Louisville, etc., Co. v. Nolan (1893), 135 Ind. 60; Pennsylvania Co. v. Congdon (1893), 134 Ind. 226, 39 Am. St. 251; Knouff v. City of Logansport (1901), 26 Ind. App. 202, 84 Am. St. 292; City of Mt. Vernon v. Hoehn (1899), 22 Ind. App. 282, and cases cited; Windeler v. Rush County Fair Assn. (1901), 27 Ind. App. 92, 97; Alexandria Min., etc., Co. v. Irish (1896), 16 Ind. App. 534, 546. The direct averment is that the injury was caused by the negligence of appellants, and certainly no facts are stated inconsistent with the proposition that the neglect of the specific statutory duty charged was the efficient cause of appellee’s injury.
Instructions two to seventeen, refused, in effect stated that if appellee was guilty of negligence contributing to his injury, he could not recover. These instructions were fully covered by instructions R, as modified, A, 2, N, O, P, R and S. Such refusals were not, therefore, error.
It is in evidence that a guard had been provided for the saw, and the employe instructed to use it. Engelbrecht testified that he could not use it all the time, because of its interference with his work, and of the dangers connected with its use. It appears, also, that said Johann was superintendent in charge of the room and machine where appellee received his injury, and that he knew that Engelbrecht generally disobeyed his orders in the use of the guard; that Engelbrecht was continued in the employ of appellants. They thus acquiesced in the violation of the statute, and became responsible for the injuries resulting therefrom. Appellants had a positive duty to perform. They permitted their employe to neglect it, Thei’e wag
The point is made by appellee that the record is incomplete because it does not contain all the evidence, and that therefore questions raised by the motion for a new trial can not be considered. Eo-r the consideration of this cause we have treated the evidence as in the record.
It appears from the record that appellants violated the provisions of the statute requiring the guarding of machinery, and that neglect of that duty caused appellee’s injury. Whether appellee was guilty of negligence contributing to- his injury was properly submitted to the jury under instructions which fairly presented the questions at issue.
We have considered the questions discussed, and find no error for which the judgment should be reversed. Judgment affirmed.