Espenlaub v. Hedderick

Jan 10, 1913
No. 7,728
Reporters:
, ,
Before:
Lairy
Lairy, J.

Appellee by his next friend sued appellants to recover damages for personal injuries alleged to have been *141caused by appellants’ negligence. Appellants’ demurrer to the complaint was overruled, an answer in general denial filed, the cause tried by a jury, and a verdict returned in favor of appellee. Appellants’ motion for a new trial was overruled, and judgment rendered in favor of appellee on the verdict. The rulings of the court on the ‍‌‌‌​‌​‌​​​​​‌‌‌​‌‌‌‌‌​‌‌​​​‌‌​‌‌​​​​​‌‌‌‌‌‌‌​‌​‌​​​​‌‌‌‌​​​‌‌​‌​​​‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌‍demurrer to the complaint and the motion for a new trial are assigned as error here.

1. 2. 3. *1424. *141Appellants assert that the complaint is insufficient for the reason that its averments show affirmatively that the plaintiff was guilty of contributory negligence. It appears from the allegations of the complaint that the plaintiff was injured while operating a buzz-saw in defendants’ factory, by reason of the negligence of defendants in failing to guard the saw in obedience to § 8029 Burns 1908, Acts 1899 p. 231, § 9, commonly known as the factory act. It appears also that, by reason of a defect in the table or platform on which the saw was operated, a piece of wood became clogged or fastened near the teeth of the unguarded saw, and that while plaintiff was attempting with his left hand to remove this piece of wood, the revolving saw caught it ‍‌‌‌​‌​‌​​​​​‌‌‌​‌‌‌‌‌​‌‌​​​‌‌​‌‌​​​​​‌‌‌‌‌‌‌​‌​‌​​​​‌‌‌‌​​​‌‌​‌​​​‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌‍and his hand was jerked against the teeth of the saw and thereby injured. From these averments the court cannot say as a matter of law that plaintiff was negligent. The complaint does not show that plaintiff in attempting to remove the piece of wood placed his hand in dangerous proximity to the saw, neither is the distance of his hand from the saw at the time he took hold of the piece of wood shown. It was not necessary for plaintiff to allege that he was free, from contributory negligence, and the complaint will be held good in this respect, unless facts are specifically averred therein disclosing the defense of contributory negligence. As to such facts, no presumptions are indulged against the pleader. Presumptions against a pleading relate only to the facts necessary to constitute a cause of action, and do not relate *142to facts ‍‌‌‌​‌​‌​​​​​‌‌‌​‌‌‌‌‌​‌‌​​​‌‌​‌‌​​​​​‌‌‌‌‌‌‌​‌​‌​​​​‌‌‌‌​​​‌‌​‌​​​‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌‍tending to disclose an affirmative defense. Cleveland, etc., R. Co. v. Clark (1912), 51 Ind. App. 392, 97 N. E. 822; Cole v. Searfoss (1912), 49 Ind. App. 334, 97 N. E. 345. The court cannot say in this case that the facts stated in the complaint show affirmatively as a matter of law that plaintiff was guilty of contributory negligence. The demurrer to the complaint was properly overruled.

5. 6. The evidence on the question of contributory negligence was conflicting. The testimony showed that plaintiff could have stopped the saw by going around the table and using a lever provided for that purpose. Some of the witnesses said that this would have been the safer course to pursue, while others testified that an attempt to pursue this course would have exposed plaintiff to other dangers of a serious character, and that the way employed by plaintiff in his attempt to remove the piece of wood in question was ‍‌‌‌​‌​‌​​​​​‌‌‌​‌‌‌‌‌​‌‌​​​‌‌​‌‌​​​​​‌‌‌‌‌‌‌​‌​‌​​​​‌‌‌‌​​​‌‌​‌​​​‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌‍the way in which it was usually done. Under the evidence, the question of whether the plaintiff used due care was one of fact for the jury. This court will not disturb the verdict of a jury on a question of fact where the evidence is conflicting, or where it is of such a character that reasonable minds might draw opposite inferences therefrom in respect to such fact.

Appellants object to the fourteenth and seventeenth instructions, on the ground that they are not applicable to the evidence. An examination of the record shows that there was some evidence to justify these instructions. The fifteenth instruction, objected to by appellants, is not erroneous.

7. Error is predicated on the refusal of the court to give certain instructions tendered by appellant. An examination of these instruction‘s shows that they were either covered by other instructions given or that they were inapplicable ‍‌‌‌​‌​‌​​​​​‌‌‌​‌‌‌‌‌​‌‌​​​‌‌​‌‌​​​​​‌‌‌‌‌‌‌​‌​‌​​​​‌‌‌‌​​​‌‌​‌​​​‌‌‌​​​‌‌‌‌​‌‌‌‌‌‌‌‌​‌​‌‌‌‌‌​​‌‍to the issues and the evidence.

Judgment affirmed.

*143Note. — Reported in 100 N. E. 382. See, also, under (1) 26 Cyc. 1399; (2) 29 Cyc. 575; (3) 29 Cyc. 579; (5) 26 Cyc. 1482; (6) 3 Cyc. 348; (7) 38 Cyc. 1612, 1711. As to the contributory negligence of an employe as affecting his right to recover for personal injuries see 97 Am. St. 884; also, note to Brazil Block Coal Co. v. Gibson (Ind.) 98 Am. St. 289.