72 Ind. App. 357 | Ind. Ct. App. | 1920
—Appeal from a judgment for appellee in an action instituted by appellant to recover damages for personal injuries alleged to have been sustained while in the employ of appellee. The sole error assigned and relied upon for reversal is the action of the court in overruling the motion for a new trial; and the questions presented by appellant for our consideration relate to the alleged error of the trial court in the giving of certain instructions.
It is urged by appellee that appellant’s bill of exception is not in the record, and for that reason no questions are properly before this court for review.
The complaint is in two paragraphs, each of which charges in substance that, at the time of the injury complained of, appellee was, and now is, a corporation engaged in the manufacture of furniture in the city of Shelbyville, and having in its employ in the operation of its factory more than five men; that appellant was employed in said factory as a common laborer, and while so engaged was ordered and directed to assist in moving a certain truckload of lumber into a dry kiln in appellee’s factory; that while he was in the act of assisting with such work a heavy . piece of lumber fell from the load and struck him on the head, to his resulting serious injury. In addition to the allegations found in both paragraphs of complaint, the first paragraph alleges facts showing that the injuries complained of were caused by the negligence of appellee in furnishing appellant an unsafe place in which to work; while in the second paragraph facts are specifically averred showing that appellant received the injuries while he was working in obedience to orders of appellee’s superintendent, to whose orders he was at the time bound to conform, and that his injuries were caused by the negligence
The evidence is not in the record, but a recital incorporated in a bill of exceptions containing the instructions shows that the undisputed evidence was that at the time appellant received the injuries complained of, and for some years before, appellee “was a corporation organized under the laws of the State of Indiana, and engaged in the business of manufacturing furniture out of wood and other material; and during all of said time had employed more than five .persons in such business.” The record also shows that “on and during the trial” appellant asserted and claimed that his complaint proceeded upon the theory that appellee was liable under the Employers’ Liability Act, supra, but that it was appellee’s contention that the complaint charged a liability both under said enactment and under the common law; and that the court “endeavored so to instruct the jury as to advise them .as to the right of recovery under the said Employers ’ Liability Act, and also as to the right of recovery undér the common law, and accordingly gave the instructions” in the case, which are numbered from 1 to .25, inclusive, none of which was requested by appellant, and all of which are in the record. Some of the instructions state the law applicable to an action under the act of 1911, supra, while others are applicable to a proceeding based on a common-law liability. It is contended by appellant that, inasmuch as each paragraph of the complaint is based on the statutory enactment, as claimed by him throughout the trial, and neither paragraph states a
Appellant presents other objections to certain of the instructions given by the court, some of which objections are well taken; but, since on another trial the instructions must be rewritten to conform to this decision, it is not likely that any instruction to which objection is made will be given in its present form, and we deem it unnecessary to prolong this opinion.
Judgment reversed, with instructions to grant a new trial.