31 Ind. App. 370 | Ind. Ct. App. | 1903
Suit for personal injuries. The, complaint avers: That appellant was engaged in laying a ten-inch pipe-line which was made up of large joints of pipe weighing 800 to 1,000 pounds, and joined together at the ends with a coupling, requiring the assistance of a number of men; that appellee was in appellant’s employ as a tongsman, his duty being, under the supervision of a superintendent and foreman, to use a pair of tongs and ¿ssist in coupling together the joints of pipe, and laying the pipes after put together; that in laying the line across the Tippecanoe river a temporary trestle or staging had been constructed upon which the joints were placed and fastened together preparatory to being lowered to the bed of the stream; that in the performance of this work, and under the direction of a superintendent, appellee and other employes working under the immediate direction of two foremen had carried onto the staging several joints of pipe and placed them on blocking placed by appellant to receive them, and had fastened the joints together, when, in the opinion of the superintend
Complaint is made of the eighth instruction given to the jury: “Should you find and conclude from an examination of all the evidence in the ease that the plaintiff has established and proved all the material allegations of his complaint, and that he has shown that he was in the employ of the defendant company, and that he was engaged in the work of the defendant, and in the line and scope of his duty at the time he received the injury complained of, and that such injury was occasioned by the falling of an iron gas pipe and its supports upon his foot and leg in the manner complained of, and that the fall of such pipe and subsequent injuries was occasioned by the giving way of the blocking or supports placed under said pipes, and that the blocking or supports was arranged and placed under the pipe by and under the direction of the defendant’s superintendent, foremen, or boss having .control and direction of the plaintiff at the time; and you further find that through the ignorance, want of skill, incompetence, negligence, or carelessness of such superintendent, foremen, or boss, the blocking and supports placed under said gas pipe was insufficient, or so carelessly placed and arranged that it was insufficient to support said gas pipe when being moved thereon under the direction of such superintendent, foreman, or boss, and that by reason thereof said supports and blocking fell over or slipped from position, and allowed the gas pipe, or the supports or blocking, to fall upon the plaintiff’s leg or foot, by which the plaintiff was lamed and injured as complained of; and if you further find that the giving way or falling over of the blocking and supports and the fall of the pipe and injury to the plaintiff was not brought about or in any manner caused by the carelessness or negligence of the plaintiff, then your verdict should be for the plaintiff, and you should assess,” etc.
The instruction undertakes to enumerate certain facts which, if proved, will authorize a verdict in appellee’s favor. It omits appellee’s knowledge of the weak and insecure condition of the blocking and scaffolding. It plainly directs the jury to find for appellee if the facts enumerated were proved. Under this instruction, appellee would he entitled to a verdict, even though he had full knowledge of the defective condition of the blocking, or could have had such knowledge by the exercise of ordinary care. Such an instruction is not cured by another which correctly states the law. It can he corrected only by withdrawing it from the jury. Chicago, etc., R. Co. v. Glover, supra.
■ The motion for a new trial should have been sustained. Judgment reversed.