51 Ind. App. 523 | Ind. Ct. App. | 1912
— Appellee brought this action against appellant to recover damages for the alleged negligent killing of J ames Simpson. The complaint was in three paragraphs. A demurrer for want of facts to each paragraph was overruled, whereupon appellant answered by a general denial. There was a trial by jury, resulting in a general verdict for appellee. Answers to fifty-six interrogatories were returned. Appellant’s motion for judgment on the answers to interrogatories, and its motion for a new trial, were overruled. The errors assigned and relied on are that the court erred in overruling the separate demurrer to each paragraph of the complaint, in overruling the motion for judgment on the answers to interrogatories, and in overruling the motion for a new trial.
The point made against the complaint and each paragraph thereof is that it failed to allege that either the shaft or the set screw was unguarded; that the language of the pleader in this respect was a mere recital, and not the direct statement
Delaware, etc., Tel. Co. v. Fiske (1907), 40 Ind. App. 348, 81 N. E. 1110; Diamond Block Coal Co. v. Cuthbertson (1906), 166 Ind. 290, 76 N. E. 1060; Elkhart Paper Co. v. Fulkerson (1905), 36 Ind. App. 219, 75 N. E. 283; Meridian Life etc., Co. v. Eaton (1908), 41 Ind. App. 118, 81 N. E. 667, 82 N. E. 480.
The sentence, "should he so establish the averments of any one paragraph of his complaint, he may recover, ’ ’ when considered without reference to the defense of contributory negligence, was technically objectionable. But when this instruction is considered in its entirety, and along with other instructions on the subject of contributory negligence, we are not persuaded that the jury understood that it was at liberty to find for the plaintiff in case the allegations of any one paragraph of the complaint were proven, without reference to the defenses. The gist of the instruction was to impress on the jury that plaintiff, in order to recover at all, must establish by a preponderance of the evidence the allegations of at least one paragraph of his complaint. Thki was one branch of the ease, the burden of which was on plaintiff. Contributory negligence was another branch, the burden of which was on defendant. • The instructions as a whole clearly defined the duties and rights of the parties with respect to each of these branches. "If it required elucidation or qualification, the other instructions given by the -court were amply sufficient to enable the jury to make proper application of the rule.” Hamilton v. Love (1899), 152 Ind. 641, 53 N. E. 181, 54 N. E. 437, 71 Am. St. 384. In the case of Indiana, etc., Traction Co. v. Jacobs (1906), 167 Ind. 85, 78 N. E. 325, the court said: "The test question in every ease is: "Was the jury misled?” and in that ease, refused to reverse the judgment on an instruction that “if the plaintiff had so proved the material allegations of her complaint, then she is entitled to recover such damages as will compensate her for the injuries, ’ ’ on the theory that under the circumstances of the ease the instruction did not constitute error. So after a careful examination of the record in the present case, we are satisfied that the jury could not have been misled by the instruction in question,
Judgment affirmed.
Note.' — Reported in 100 N. E. 31. See, also, under (1) 26 Cyc. 1384, 1392; (2) 26 Oyc. 1134; (3) 38 Cyc. 3927; (5) 20 Oye. 1133: