64 Ind. App. 415 | Ind. Ct. App. | 1916
Lead Opinion
This is a- suit for damages for personal injuries. The complaint is in three paragraphs on which issues were joined by general denial. A trial by jury resulted in a verdict for appellee for $3,250, on which judgment was rendered. From this judgment appellant has appealed and assigned as error: the overruling of its separate demurrer to each paragraph of the complaint; the overruling of appellant’s motion for judgment on the answers of the jury to the interrogatories
The first paragraph of complaint alleges in substance that on October 12, 1912/ appellant was a corporation duly organized and doing business in Lawrence county, Indiana, and engaged in quarrying and shipping stone; that it was then and there engaged in business, trade and commerce and in so doing employed a large number of persons, more than five in number; that on and prior to the date aforesaid appellee was employed by appellant to operate a machine called a channeler and on said day was operating a Sullivan channeler which ran back and forth over two T-rails laid about four feet apart and ninety-six feet long; that another similar machine was being operated on the same track by one William Paxton; that the machine operated by appellee faced the east, and the one operated by Paxton faced to the west; that each of said machines was operated by two engines, one of-which was used to raise and lower the drills which did the channeling, and the other and smaller engine moved the machine along the track; that a Sullivan machine is stopped by moving a certain lever and placing the machine on “center”; that when such machine is in good repair and in perfect working condition, and so stopped, it will not move until taken off “center”; that the larger of the two engines operated the drills which do the channeling, and to stop channeling such engine was put on “cushion,” and the drills, though in motion,, would not then strike the stone; that appellant carelessly and negligently permitted the small engine and gearing on said machine operated by appellee to become defective and out of repair so that when the aforesaid machine or engine was placed on “center” and the machine stopped it would not at all times remain on “center”- and keep the engine from moving; that appellant knew the small engine on the machine
The second paragraph of complaint contains the same general averments as the first paragraph and also charges that a ¿track was laid over and upon the stone to be channeled, along and over which said machines were propelled; that it was necessary to the operation and safety of the machines that the track be kept level; that appellant employed one William Paxton to lay and level said tracks and it was his business to see that the track was kept level; that Paxton carelessly and negligently failed and neglected to keep and maintain- said track level, and carelessly and negligently inclined the same toward the west; that it became, and was, necessary for appellee in the line of his duty to remove a spaul or small stone from the channel made by the drills and to do so he had to place his left hand upon one
The third paragraph contains substantially the same general averments as the first and second and alleges that while appellee was engaged in removing the spaul from the channel made by the machines, William Paxton, an employe of appellant, operating another channeling machine on said track, suddenly, carelessly and negligently started his machine and caused the track to vibrate and thereby caused appellee’s machine to start and move to the west and injure his hand in the manner aforesaid.
The demurrer to each paragraph of the complaint was for insufficiency of the facts alleged to state a cause of action. The memorandum contains numerous specifications of alleged reasons for such insufficiency, the gist of which is that the allegations fail to show any negligence on the part of appellant which was the proximate cause of appellee’s injury; the allegations fail to show that appellee did not know and appreciate the danger incident to his employment; that each paragraph shows the injury was due to an unavoidable accident on the part of a fellow servant which could not have been foreseen and guarded against by appellant; that the injury was due to hazards inherent in the employment and the risk was assumed by appellee; that the allegations conclusively show that appellee’s injury was contributed to by his own negligence; that they fail to show the master’s knowledge of the alleged defects in time to make repairs and avoid the accident; that .the averments do not negative knowledge of the defects on the part of
Each paragraph of the complaint seeks to state a cause of action under the Employers’ Liability Act of 1911 (Acts 1911 p. 145, §8020a et seq. Burns 1914) and must therefore be tested by such theory.
Section 1 of the act provides: “That any person, firm or corporation while engaged in business, trade or commerce within this State, and employing in such business, trade or commerce, five or more persons shall be liable and respond in damages to any person suffering injury while in the employ of such person, firm or corporation * * * where such injury or death resulted in whole or in part from the negligence of such employer or his, its or their agents,- servants, employees or officers, or by reason of any defect, mismanagement or insufficiency, due to his, its or their carelessness, negligence, fault or omission of duty.”
Section 2 of the act (§8020b Burns 1914) provides: “In actions brought against any employer under the provisions of this act for the injury or death of any employe, it shall not be a defense that the dangers or hazards inherent or apparent in the employment .in which such injured employe was engaged contributed to such injury.”
Section 3 of the act (§8020c Burns 1914) provides: “In any action brought against any employer under the provisions of this act to recover damages for injuries to or the death of, any of his, its or their employes, such employe shall not be held to have assumed the risk of any defect in the place or work furnished to such employe, or in the tool, implement or appliance furnished him by such employer, where such defect was, prior to such injury, known to such employer or by the exercise of ordinary care might have been known to him in time to have repaired the same or to have discon
Since each paragraph of complaint is sufficient under the statute, it is unnecessary to consider the propositions discussed by appellant relating to common-law liability.
The answers of the jury to interrogatories in substance show that appellee had been operating a channeling machine for five months or more before his injury, and that he had full control of the machine he operated; that it was his duty to see that the machine was in good running order, to make such adjustments and repairs as he could make and report to the mechanic such as he could not make; that appellee’s machine got off “center” two or three weeks before he was injured and he was told by one of appellant’s mechanics that it had been fixed; that each operator of a channeling machine inspected it and reported defects; that appellant had its channeling machines inspected by the operators of them and also by mechanics; that appellee' stopped his machine before attempting to remove thespaul from the channel cut and placed hi§ hand on the
Section 419 Burns 1914, §410 R. S. 1881, which authorizes the postponement of trials on account of the absence of evidence, among other things, requires the affidavit to show “that due diligence has been-used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of -procuring the testimony within a reasonable time.” The showing of diligence to procure the attendance of the absent witnesses is not satisfactory and there is no showing of any probability of procuring the attendance of the witnesses within a reasonable time. Trial courts have a judicial discretion in granting or refusing continuances, and on the showing made in this case there was no such abuse of that discretion as will warrant
Rehearing
On Petition fob Reheabing.
Appellant insists that the trial court erred in overruling its motion for a new trial, and that this court erred in holding that reversible error is not shown in the giving of the instructions, and bases this contention on instruction No. 7 given by the court at the request of appellee.
From this it follows that- no question relating to the instructions is duly presented. Petition for rehearing overruled.
Note. — Reported in 114 N. E. 417. See under (1) 26 Cyc 1180, 1360, 1392; (2) 26 Cyc 1117, 1229, 1419