39 Ind. App. 121 | Ind. Ct. App. | 1906
Appellee recovered a judgment below against appellants, based upon their alleged negligence, which resulted in the death of appellee’s decedent. Appellee’s complaint was in two paragraphs, to the second of which a demurrer was overruled. Appellants’ answer was a general denial. Overruling the demurrer to the amended second paragraph- of the complaint and the motion for a new trial are assigned as errors. It is averred in the amended second paragraph of complaint that appellants employed John C. Nolan to break and reduce into small pieces certain heavy pieces of iron and steel machinery,
In attempting to connect appellants with the negligence resulting in the death of appellee, in the amended second paragraph of complaint the following words and phrases are to be found: “By the use and means of dynamite,” “and 'pursuant to said contract of employment,” and “and connivance and under the directions,” etc., of appellants. The original second paragraph of complaint was amended by the insertion of the above words and phrases by leave of the court, just before the commencement of the trial. Thereupon appellants moved that the court require appellee to separate the paragraph as amended into two paragraphs, embracing in one paragraph the facts stated, showing that the appellants had contracted for the doing of unlawful work, or for the doing of lawful work in an unlawful manner ; and in the other, that they had directed and controlled the contractor as to the method and manner of doing the work, and that the work had been done by him negligently and carelessly with their connivance and under their direction. This motion was overruled, and an exception saved. Appellants urge two objections to the amended second paragraph of the complaint: (1) That the facts pleaded show that Nolan was in charge of the work as an independent contractor. This proposition is based upon the allegation in the complaint that appellants “employed and contracted with him to do and perform the- work.” It is urged that there is no averment, either general or specific, that he was their servant, and that they are not responsible for his negligent acts done in his capacity as an independent contractor.
It is.important in considering this instruction to state that there is a sharp conflict in the evidence as to the cause of the decedent’s injuries. There is evidence directly supporting the averments of the complaint that he was in the” alley abutting on the grounds where the explosions occurred, and that he was injured by a missile hurled through space by the explosion. There is also some evidence that he was upon the premises where the work was being done, without invitation, and that in hurrying away to get out of danger, immediately before the explosion, he fell over a railroad track and received his injury. By this instruction the court assumed to state the respective theories of the parties, and said that it was the contention of appellants that “the defendants contended that decedent was guilty of contributory negligence in going upon the tract of ground at the time in controversy,” etc. Counsel for appellants urge that this was a misstatement of the theory of the defense, and that they proceeded upon the theory that appellee’s decedent was upon the premises without invitation, and hence was a trespasser to whom neither Rolan nor appellants owed “any duty of care,” except not wilfully to injure him.
Judgment affirmed.