54 Ind. App. 95 | Ind. | 1913
In summing up its objections to the first paragraph, appellant insists that the only theory of negligence upon which it “can possibly stand is that of failure to warn and instruct,” and that no averment of that fact is made “except by way of recital unless the characterization of the negligence in the concluding statement of the cause of injury be regarded as such averment.” While this paragraph is, in a measure, open to the criticism made against it, yet, its averments, when taken in their entirety, necessitate the inference that appellant failed to warn and instruct appellee, and hence it was, in such particular, sufficient to withstand the demurrer. Cleveland, etc., R. Co. v. Perkins (1908), 171 Ind. 307, 313, 86 N. E. 405; Malott v. Sample (1905), 164 Ind. 645, 648, 74 N. E. 245; Evansville, etc., R. Co. v. Darting (1893), 6 Ind. App. 375, 33 N. E. 636; Holliday & Wyon Co. v. O’Donnell (1909), 44 Ind. App. 647, 657, 90 N. E. 24. When tested by the recent case of Domestic Block Coal Co. v. De Armey (1913), 179 Ind. 592, 100 N. E. 675, 102 N. E. 99, any doubt as to the sufficiency of such paragraph, in the respect mentioned, must disappear.
The appellee was questioned as follows: “Does that exhaust fan in that establishment (referring to Indianapolis Saddlery Company) interfere in any manner with the use of the machine?” This question and the answer sought to be elicited thereby were objected to by appellant for the following reasons among others, viz., (1) such question and answer would introduce into the record a collateral matter not germane to any issue in the case; (2) the question refers to a machine operated by another employer in a different factory and another place without any showing of similarity of location or surrounding conditions to the machine referred to in the complaint; (3) the question calls for a conclusion. The objections were overruled, to which ruling appellant excepted, and the witness answered. A. “None that I know of.” Q. “Describe to the jury how that exhaust fan operated upon that machine in the Indianapolis Saddlery Company’s establishment.” To this question the above objections in substance were repeated with the additional objection that the question did not designate the machine to which it was intended to refer. The objections were overruled and exceptions properly saved and the witness answered: A. “Well, I don’t know just the means of the operation of it, but it kept the room all clear of dust.” Q. “Was the room clear of dust when the machine was in operation cutting straw ? ” To this question there was a similar objection and same ruling and exception above indicated and the witness answered: “Yes, sir.” The evidence sought and elicited by each of the questions could be admissible for but one purpose, viz., as tending to show that the machine on which appellee was
Judgment reversed with instructions to the court below to grant a new trial and for any further proceedings not inconsistent with this opinion.
Note.—Reported, in 101 N. E. 642. See, also, under (2) 26 Cyc. 1393; (3) 38 Cyc. 1927; (4) 17 Cyc. 39; (6) 17 Cyc. 283; (7) 26 Cyc. 1494, 1507; (8) 29 Cyc. 488; (9) 38 Cyc. 1782; (10) 29 Cyc. 774; (11) 26 Cyc. 1429; (12) 38 Cyc. 1509; (13) 38 Cyc. 1494; (16) 26 Cyc. 1389. As to proximate and remote cause generally, see 36 Am. St. 807. As to misconduct of counsel in argument warranting reversal, see 9 Am. St. 559. As to when opinions of nonexperts are admissible, see 30 Am. St. 38.