22 Ind. App. 436 | Ind. Ct. App. | 1899
— This case has twice before been appealed. Salem-Bedford Stone Co. v. Hobbs, 11 Ind. App. 27;
It is argued by appellee’s counsel that this appeal was improperly taken, as the record shows a motion for a new trial pending in the court below undisposed of. In the original record Hied, immediately following the special interrogatories and answers, is this entry: “Defendant also asks leave to file its motion for a new trial of this cause.” But no motion is in the transcript. A writ of certiorari was asked directing the clerk, among other things, to embrace in the transcript a copy of the motion for a new trial. In the return to this writ the clerk certifies that, on a date named, “defendant now files its motion for a new trial of this cause.” But the motion itself is not set out. "We have no means of knowing whether a proper motion for a new trial was filed in the trial court, except from the motion itself. Besides, no error has been predicated upon the court’s ruling upon any motion for a new trial.
The amended complaint avers that appellee used in its stone-yard a traveling derrick, operated upon a tramway and used for lifting heavy stone; that decedent was an employe known as a “hooker”, whose duties were to fasten hooks attached to the traveling denick to blocks of stone, to remove them; about three months prior to the accident, appdllee had negligently placed a large stone nine feet long, five feet wide,
The jury, in answer to interrogatories, say that appellant’s decedent did not have an equal opportunity of seeing the condition of the soil under the tramway with appellee, and that he could not, by looking and hv the exercise of his other senses, have seen the condition of the soil as to whether it was loose or compact; that he had worked in the mill-yard, covering about two acres, about eight months; that he had worked in and about the tramway at a point near where he was killed, about six weeks; that he assisted in building and putting in the foundation for the bents of the tramway; that at the time of the accident, about 2 o’clock in the afternoon, he was in possession of a sound sense of hearing and sight; that he assisted in removing the stone which was about eight feet long, three feet wide, and one to two feet thick, from in front of the stone that fell upon him, which was about three or four feet away. The stone that fell upon decedent was about nine feet long, five feet high, and one foot to three feet thick, was standing on “made earth,” on an incline; and
Upon the former appeal, the Supreme Court held that: “"Where the facts set forth in the pleading strongly tend to show that the danger from which the injury complained of resulted wras a known incident to the service, the complaint cannot be made good without a denial of the assumption of the risk in the complaint or a denial that it was a known incident to the service in which the servant was engaged when injured, if the facts and circumstances stated do not necessarily imply such denial.” (1Í4 Ind. 146.)
By the general verdict, the jury found that appellant’s decedent was guiltless of contributory negligence; that appellee was negligent; that appellee had knowledge of the dangerous condition of the stone, knew of the loose dirt beneath the stone, its liability to fall by reason of the new-made earth; that the place in and about the stone was dangerous to employes; and that these facts were unknown to decedent, and that he did not assume the risk.
It is a well established rule in this State that a general verdict is presumed to have been rendered upon the substantial merits of ail controverted matters, and every reasonable presumption will be indulged in favor of its correctness. ISTothing is presumed in favor of special answers. They must not be contradictory, or inconsistent with each other, or ambiguous, because if they are- to destroy the general verdict
The answers do not show that there was anything in the appearance of the stone that would suggest danger. Its condition had not been changed, no props had been taken away from it. There may have been other safe ways to do the Avork, but it is not shown that there was any apparent danger in doing it the Avay it was done. The only danger came from the concealed loose earth, of Avhich the general verdict finds decedent was ignorant. It is not shown that there was anything to suggest to decedent 1¿iat the earth beneath the stone was new-made earth. Tie Avas not bound to make any exam
It is argued that if there was a place of danger decedent assisted in making it, by assisting in removing a stone from in front of the stone that fell. The jury find that the stone that was removed was three or four feet from the stone that fell. It does not appear from the answers whether this means that the stone that was removed was three or four feet from the other stone before it was removed, or whether it was that distance away after it was removed. The evidence has not been brought into the record, and the answers do not show that the stone that was removed was immediately in front of the other. From the answers we take it to be the fact that they were not resting against each other, for the stone that fell did not fall until five or ten minutes after the other stone was removed, and the jury say that the removal of this stone did not weaken the support of the other stone, and had nothing to do with the falling of the stone that fell and caused the death. They expressly find that loose earth caused the stone to fall. It is true it is found that the stone could not have fallen on decedent as then situate, unless the stone in front had been removed. This is not necessarily a finding that the removal of the stone created the place of danger, nor is it necessarily inconsistent with the finding that the removal of this stone had nothing to do with the falling of the stone that fell.
When we take the fact that, under the issues tendered by the second paragraph of complaint, the only loose éarth was that beneath the particular stone, we cannot say that the conduct of decedent, as disclosed by the answers, shows con-