39 Ind. App. 636 | Ind. Ct. App. | 1905
The appellee recovered judgment against the appellant for a personal injury. In the complaint it was shown that the appellant owned and operated a large steel manufacturing plant at Indiana Harbor; that on the morning of June 12, 1902, the appellee was employed by the appellant; that through its officers and agents the appellant directed the appellee to engage in the work of fastening certain cleats, for the hanging of electric wires, to a certain tall pillar in appellant’s mill, which direction was a reasonable one, and the appellee obeyed it, as it was his duty to do; that the cleats were put on by passing a bolt through the iron of said pillar and screwing a nut down on the bolt, so as to hold the cleat firmly in place; that in order to do the work the appellee was directed by the appellant to climb up on a certain horizontal beam and to stand on the flange thereof and on the angle-iron attached to the pillar, which was a reasonable direction, and the appellee obeyed it; that in order to retain his foothold, which was very slight and precarious, and to do the work which he was required to do, it was necessary that he put his arm around the upper portion of the pillar at some distance above the horizontal beam, and he did so; that he put his left arm around the pillar in order to hold himself in the position in which it was necessary for him to be to do the work; that at that time, and for some days prior thereto, the appellant used, operated and had charge of a certain large traveling Crane, which was operated and moved over the horizontal beam so attached to the pillar, which crane was a part of the equipment of the building and plant; that when he was in this position, with his arm around the pillar, in discharge of his duty, the appellant knew, or ought to have known, the dangerous position in which appellee was placed; that he was in full view of the agents and representatives of the appellant operating the crane; that it was necessary for him
The appellant does not suggest any defect in the complaint, but in its brief it is said that it may be sufficient to show a cause of action, and we are asked to consider it in connection with the evidence and the answers to the interrogatories to the jury returned with the general verdict. By these answers to interrogatories, the history of the injury is related, and much of what is thus found specially is substantially in agreement with the averments of facts in the complaint. The crane was owned by the appellant and was operated by John Nelles, an employe of the appellant, and it was traveling from east to west. Nelles was in a cage suspended below the crane at the north end théreof within a few feet of the north rail, on which the crane traveled, and he was required to look southward while operating the crane. There was no evidence, it was found, that the crane had moved that morning, prior to the time of the injury. The appellee, on that morning before his injury, had bored four or five holes in the columns, above the track on which the crane traveled, and he had been thus engaged about thirty minutes. At the time of his injury he was engaged in fastening a cleat upon one of the columns which supported the girder on which résted the rail which supported the truck of the crane. There was nothing to prevent the appellee, had he looked, from seeing the crane while walking in the department in which it was situated. He could not have seen the crane while he was boring the holes, and could not have seen it, it was found, just prior to the time he was injured, from the point where he was injured, had he looked, because he was too busy with his work. He did not see and observe the rail and track on which the crane traveled, while he was fastening on the cleat and before his injury, though there was nothing to prevent him from seeing the rail or track had he looked.
The appellant’s motion for a new trial was overruled. The trial was held in December, 1903, and it was sought to make the instructions given to the jury and those requested, but refused, parts of the record, and to take and to save exceptions to the action of the court in giving and in refusing to give instructions, pursuant to the provisions of section one of the statute of 1903 (Acts 1903, p. 338, §544a Burns 1905). The court gave written instructions numbered from one to twenty-nine, inclusive. Between instructions twenty-three and twenty-four of this series is inserted an exception, as follows: “Defendant excepts to the modification of instructions fourteen, sixteen, eighteen, nineteen, twenty-one and twenty-three, instructions tendered and modified by the court before givipg to the jury” — signed by the defendant’s attorney. After instruction twenty-nine is the signature of the special judge who presided at the trial. Next is the following, signed by the attorneys for the appellant: “The defendant excepts to the giving of each and every one of the foregoing instructions one to twenty-nine, inclusive, separately and severally and as a whole.” There is then an exception signed by attorneys for the appellee, which need not be set out. Then follows a statement, dated and signed by the judge, to the effect that the appellee excepted to certain of the instructions given by the court. Then follows a statement, not signed or dated, which, so far as it relates to exceptions taken by the appellant, is ás follows: “And the defendant excepts to said instructions twelve, thirteen, fifteen, sixteen, seventeen, eighteen, twenty and twenty-two.” The appellant requested a separate instruction directing verdict in its favor, which need not be further noticed. The appellant also requested the giving of a series of instructions
We have read carefully the appellant’s statement of the evidence, upon which it is claimed that the verdict was not supported by sufficient evidence, and that the damages— $10,000 — were excessive, and we do not find any occasion for disturbing the judgment on such grounds. The evidence was such that the questions as to whether there was negligence on the part of the appellant,’ as to whether there was contributory negligence on the part of the appellee, and as to whether he assumed the risk, and as to the amount of damages, were properly within the province of the jury;
Judgment affirmed.
[Note. — This appeal from the first division of the Appellate Court was perfected December 28, 1905. It was pending in the Supreme Court on March 9, 1907, when the act approved on that date (Acts 1907, p. 237, §3) took effect, whereby subdivision three, §1337j Burns 1901, Acts 1901, p. 565, §10, under which this appeal was taken, was expressly repealed. The repeal of such subdivision was not brought to the attention of the Supreme Court, and this decision is published in view of the fact that the Supreme Court’s jurisdiction thereafter may be open to legitimate debate. — Reporter.]