22 Ind. App. 121 | Ind. Ct. App. | 1898
— Appellant appeals from a judgment awarding damages for personal injuries sustained by appellee’. The errors assigned call in question the overruling of the demurrer to the complaint, the overruling of appellant’s motions for judgment on the interrogatories notwithstanding the general verdict, for a venire de novo, for a new trial, and in arrest of judgment.
The complaint alleges that on and since March 1, 1896, appellant has operated an electric light plant in the city of Frankfort, Indiana; that on said date appellee entered the employ of appellant as a “trimmer”; that his duties wore to visit appellant’s lamps each day, examine them, and see that they were in proper condition, to replace carbon in lamps when necessary, and to inspect said lamps once each hour when lighted, to see that they were burning properly, and, if any lamp was found not in proper condition, to report that fact to appellant’s electrician; that appellee continued in such employ until the 23rd day of duly, 1896, when appellant was putting up a new wire which required adjusting at the top of a pole extending twenty-five feet above ground; that appellee was ordered and required by one George 13. Marshall, who was appellant’s agent and electrician, and whose duty it was in part to maintain the poles and wires in proper condition, to climb said pole to adjust said wire; that such work was no
It is further averred that appellee fell because the pole was leaning, and the spurs were defectively constructed, which fact appellant knew; that appellee did not know the spurs were defectively constructed, and did not know it was more hazardous to climb a leaning pole than one standing upright; that the duties of trimmer were not hazardous or dangerous, and that climbing poles and adjusting wires thereon is especially so to persons unaccustomed to such work; that appellant knew appellee was unaccustomed to climbing poles and adjusting wires; that said injury resulted from the wrongful conduct of appellant in permitting said
It is argued by appellant’s counsel that, while the complaint avers generally that appellant knew that the spurs were defectively constructed; and that appellee did not not know that fact, it does not aver that appellee did not know of the defect and had not equal means of knowing with appellant. This is not a case where a proper appliance was furnished, which afterwards became defective while being used by the servant, but the appliance was defective when first furnished, and of such defect appellant is chargeable with knowledge. The duty of inspection does not lie equally upon the servant and the master, because the servant has the right to rely upon the master doing his duty in the furnishing of safe appliances, unless the defect is such that an ordinarily prudent person would observe it. The complaint alleges that the spurs were not only set at a wrong angle, but that the material was soft, and would bend under a man’s weight. In such case the master undertakes that the appliance is fit for the use to which it is to be put, so far as ordinary care and prudence can discover. Baltimore, etc., R. Co. v. Amos, 20 Ind. App. 378. Thus in Louisville, etc., R. Co. v. Buck, 116 Ind. 566, the court said: “While the employer may expect that an employe will be vigilant to observe, and that he will be on, the alert to avoid all known and obvious perils, even though they may arise from defective tools and machinery, * * * yet the latter is not bound to search for defects or inspect the appliances furnished him to see whether or not there are latent imperfections in or about them whicli render their use more hazardous. These are duties of the master, and unless the defects are such as to be obvious to any one giving attention to the duties of the occasion, the employe has a right to assume that the employer has performed his duty in respect to the implements and machinery furnished. Brad
Appellant’s counsel has cited a number of cases to the effect that, where the apparent danger is such that a person of ordinary pnidence, exercising that prudence, would refuse to encounter it, he proceeds at his peril, although ordered to do work out of the line of his employment. But, as we have said, we cannot say in the case at bar that the defects in the spurs as described in the complaint were such that a person unaccustomed to their use would be held to have known. There was no error in overruling the demurrer to the complaint.
With the general verdict the jury answered certain interrogatories to the effect that appellee, by the use of his eyesight, could have discovered that the pole was leaning, and that branches of a tree obstructed free passage up the pole on the upper side; that he had as good an opportunity to discover this as appellant, and that he knew the pole was leaning and obstructed as aforesaid; that the spurs used by appellee were not sound and fit for the purpose intended, so far as ordinary pnidence could discover; that appellee did not have as good opportunity to see and observe the character and the then present condition of the spurs as appellant; that appellee had had very little experience in climbing electric light poles; that the spurs used were defective, in this: “Spurs were beveled on wrong' side, and set too low on shank;” that appellee had used the same spurs in climbing poles for appellant prior to the time of his injury; appellee ■could not by the use of ordinary diligence have seen the defects in the spurs prior to the time of his injury; appellant had knowledge of the defect in the spurs; that, on the 23rd day of July, Harry Natcher was'superintendent of appellant, and had full control of and authority to direct the work of all
It is argued by counsel for appellant that his motion for judgment on the answers to the interrogatories should have been sustained, for the reason that the answers show that the general verdict is based upon a different state of facts than those alleged in the complaint; that the jury found that the defects in the spurs, as alleged in the complaint, did not exist, because in specifying the defects they specify other and different ones. The rule is well settled that a plaintiff, in order to recover, must prove all the material allegations of his complaint, and that he cannot recover upon a state of facts different from those alleged, although the facts proved may make a case; that a plaintiff must recover secundum allegata et probata or not at all. The reason for such a rule is that a defendant cannot be brought into court and required to disclose his grounds of defense to one state of facts, and a judgment rendered against him upon a different one. He is entitled to know what he is required to meet. But in the case at bar, upon the particular matters, the appellant was charged with having furnished an employe with defective spurs. It is true, the defect the jury finds existed in the spurs is different from the defects alleged in the complaint. The complaint charged that the defect, in part, was the. man
As we have seen, the complaint alleges that appellee was inexperienced in climbing poles, and ignorant of the use of spurs. In answer to interrogatories the jury found that appellee had had very little experience in climbing electric light poles prior to the injury, and that he had used the same spurs in climbing poles of appellant prior to the injury. It is argued that by these answers it is shown appellee knew of the defects in the spurs, if they existed, because he had used them and had equal means with the master of knowing of the defects, if they existed. The appellee himself testified that he had noticed this particular pole several times, and knew that it was leaning, and, knowing this he put on the spurs and tried to go up it. He further testified that between the 1st of March and the 23rd day of July, he had climbed eight or ten poles, “not over ten poles;” that these particular spurs were the only pair he remembered of ever having on, and that every time he had climbed he had climbed with these spurs. He further testified that he was ordered to put the spurs on, that he knew nothing about the shape the spurs ought to be, or their quality, and that he had never paid any attention to spurs at all. The witnesses are all agreed that the defects in the spurs — the position in which the spurs were set — caused them to pull out of the wood when in use, and that the metal was soft, causing the points to blunt, thus
"Whether appellee, when injured, was not engaged in work he had been instructed not to do presents a more serious question. The jury found that Harry Hatcher on the 23rdi day of July, 1896, and for more than six months prior to-that date, was appellant’s superintendent, and had full control of and authority to direct the work of all employes of appellant during the time from July 19 to July 26, 1896; and that Hatcher, subsequent to May, 1896, and prior to the injury, notified and directed appellee that he should work
The evidence is undisputed that if-George Marshall had authority to direct appellee to do certain work, and the jury answered that he had, he got the authority from Natcher. The question then arises whether the general instructions given all the employes by the superintendent on May 1st to look to George Marshall, who had charge only of certain work, for instructions, or the special instructions given appellee by the superintendent afterwards’ as to particular work, should control as to that particular work. It is not shown by the jury’s answers, or by any evidence, that the
Taking the answers to the interrogatories together with the evidence upon which they are based, we do not believe that the general verdict and the answers to the interrogatories should stand; but that the interests of justice would be best subserved by granting a new trial. Judgment reversed, with instructions to sustain appellant’s motion for a new trial.
Henley, J., absent.