28 Ind. App. 108 | Ind. Ct. App. | 1901
Appeal from a judgment in favor of appellee for damages for a personal injury. Errors are assigned upon the overruling of a demurrer to the complaint, of appellant’s motion for judgment on the answers to interrogatories, and of appellant’s motion for a new trial.
The complaint avers that appellant was engaged in sink
The defect charged was not an open and obvious one. It was not such a defect as that both the master and servant are equally chargeable with knowledge of its existence. The appearance of the appliance was not. such as would necessarily suggest that it was deficient in the manner charged. The inherent weakness of the pulley would not necessarily result only from its smallness in size. The averment in this particular could have been more specific, had such a request been made. The pulley was not unsafe simply because of its smallness in size, but also because it was inherently weak. Nor can we say, from the averment as to the time appellee had been in the service, that he must have necessarily known the size of the pulley. As against a demurrer we think the complaint is.sufficient. Cincinnati, etc., R. Co. v. Roesch, 126 Ind. 445; Bradbury v. Goodwin, 108 Ind. 286; Indiana Car Co. v. Parker, 100 Ind. 181.
When the jury say, by answers to interrogatories, that .appellant, in procuring and using the pulley, did not exercise such care and prudence as men of ordinary care and prudence would exercise under like circumstances, and that appellee, in remaining where he was when hurt, did exercise such care and prudence as persons of ordinary care and prudence would exercise under like circumstances, they are doing nothing additional to what they have already done in the general verdict in appellee’s favor. These questions and answers are not parts of a special verdict.
The jury were asked, “Was there any urgent, pressing, or reasonable necessity for plaintiff to be where he was when he was hurt, and, if so, what was that necessity, and why was it so necessary?” The jury answered, “To perform his work.” It can not be said, as argued, that the answer is indefinite and meaningless. An affirmative answer to the first part of the question is necessarily implied in the
It appears that appellee began work in the shaft about seven o’clock in the morning of June 25, 1899, and was injured between one and two o’clock that day while working in the east compartment. The bucket was filled and was hoisted to the top over the center of the east compartment, but before the car could be pushed under it the pulley broke and the bucket fell, striking the end of the car, and passed on to the bottom of the shaft, “glancing on plaintiff’s shoulders.” It is argued that the answers show that while the bucket was being hoisted appellee showed, by the position he occupied, such disregard for his own safety as amounts to contributory negligence. These questions and answers are: (29) “When said bucket fell, did it strike about the center of the said east, part or compartment of said shaft, and, if not, how near to such center did it fall? Ans. About two feet from the center.” (30) “When said bucket struck plaintiff, was it on a direct line of descent from where it started, and, if not, how far was it out of such direct line? Ans. About two feet from the center.” (31) “Was. plaintiff directly under said pulley when it broke, and, if not, how far was he from a direct downward line therefrom? Ans. About two feet from the center.” (32) “Was plaintiff directly under said bucket, or any part of it, when said break occurred, and, if not, how far was he to being under the same or part thereof? Ans. About two feet.” From these and other findings it appears that when the bucket was raised above the top of the shaft it hung over the center of the east compartment, and that when the bréale occurred, if the bucket had met no obstructions, it would have struck in the center of the bottom of that compartment. But the thirty-second interrogatory and answer show that when the break occurred, appellant was not stand
It is also argued that the answers show that the defect in the pulley was obvious and apparent, could have been discovered by appellee by the exercise of ordinary care, and that the risk was therefore assumed. (16) “Was the said pulley hung upon a stem attached to a ring, and was said stem attached to said pulley, and having on the end thereof an enlargement or bulb enclosed in an opening which closed said enlargement or bulb and fit around said stem, and did the break of said pulley consist of the said enlargement or bulb breaking off of the end of said stem? Ans. Yes.” The jury answered that the block or pulley was insuffieifent in size, material, and strength. (20) “Oould such defect or insufficiency have been discovered, except by breaking and destroying said pulley, and, if so, how? Ans. Yes, by general appearances.” (25) “Was said pulley, on said day, at all times plainly in the view of any one going into said shaft and would not the size, kind, and make of said pulley be obvious and apparent to anyone who looked at it from the top and at the edge of said shaft? Ans. Yes.” (26) “Was there, on said day, anything about the appearance of said block, or anything that could be discovered without breaking or destroying it, that would indicate that it was insufficient for the purpose of hoisting said buckets to said shaft, and, if there was anything, what was it? Ans. Yes,
There was no error in permitting expert witnesses to testify that a pulley which was exhibited to them was not a suitable and proper appliance with which to do certain specified work. ’ We presume the pulley shown the witnesses was like the one in question, as no objection was made on that ground. It is true the general rule is, subject to some •exceptions, however, that a witness may not give an opinion upon the exact point in issue. But we fail to see how it can be said that the evidence in question can come within this rule. The sufficiency or insufficiency of the pulley was only one of several questions the jury had to decide. No reason is assigned by counsel why this evidence was not admissible under the general rules admitting expert testimony. See, Bonebrake v. Board, etc., 141 Ind. 62; Diamond, etc., Coal Co. v. Edmonson, 14 Ind. App. 594.
The twenty-eighth instruction reads as follows: “Defective appliance. Proof must follow the allegation of complaint. In order to recover in this action, the plaintiff must establish, by a fair preponderance of the evidence, that the defendant was guilty of the particular acts of negligence charged in the complaint, namely, that the defendant
Under the averments of the complaint that the pulley was insufficient and inadequate in’size and strength, which appellant knew, and of which appellee had no knowledge, appellee was required to prove not only that he had no knowledge of the defect, but that, by the exercise of ordinary care, he could not have known it. If appellee knew the pulley was insufficient and inadequate in size and strength to lift the weight placed upon it, and he voluntarily continued in the employment, without any promise on appellant’s part to replace it with a sufficient pulley, he assumed the risk incident thereto. The instruction plainly tells the jury that they may find for appellee if the facts ■stated in the instruction are established by the evidence, without any reference to actual or constructive knowledge of appellee. Upon the authority of Pennsylvania Co. v. Ebaugh, 152 Ind. 531, and Chicago, etc., R. Co. v. Glover, 154 Ind. 584, this instruction must be held erroneous.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.