48 Ind. App. 420 | Ind. Ct. App. | 1911
This action was brought in the Superior Court of Marion County by Abbie Thomas, as administratrix of the estate of her deceased husband, W. Scott Thomas, to recover damages occasioned by his death, which was caused by the breaking of a traveling crane upon which he was at work while in the service of appellants. The negligence charged is that appellants did not exercise reasonable care to provide decedent with a safe place in which to work.
The first paragraph of complaint, omitting the formal parts, is as follows: That at, and for a long time prior to, the times hereinafter stated defendants were engaged in the business of cutting and dressing stone to be used for build
That ~W. Scott Thomas, plaintiff’s decedent, was in the employ of defendants on February 6, 1907, and had been in their employ for a long time prior thereto, in the capacity of engineer of said traveling crane; that as such it was his duty to perform his work in said cab upon said traveler, and to run and operate said engine, boiler and machinery connected therewith, and, at the order and direction of defendants, their agents and employes, to move, by means of said crane, blocks of stone, and in order to do so, it was necessary for him to move and operate said cab north and south along the rails of said traveler, and move and operate
That on February 6, 1907, while decedent was engaged in the discharge of his duties, as such employe of the defendant, and while engaged in operating said crane, and while in the place where his said duties required him to be, to wit, in said cab, and while engaged in lifting a stone weighing only fourteen tons, under the order and direction of defendants, their agents and employes, in the line of their duty as such agents , and employes, one of the hog chains and timbers of said traveler, supporting said cab, by reason of its weakened, defective, rotten and crystallized condition, broke, causing said cab to turn over and fall to the ground, fracturing decedent’s skull and right leg, and otherwise wounding, crushing and mangling him, by reason of which he then and there died; that defendants, at and before the breaking of said timbers and of said hog chain, had knowledge that said timbers in said traveler were old, weakened, rotten, worn
That said decedent at the time of his death was fifty-five years old, and his expectancy at said time was seventeen and fifty-eight one-hundredths years; that on August 31, 1907, plaintiff was appointed administratrix of the estate of said W. Scott Thomas, deceased, by the clerk of the Marion Circuit Court, who was and is ox officio the clerk of the Probate Court of Marion County, Indiana, and that she duly qualified and assumed the duties as such administratrix, and is now acting as such; that said W. Scott Thomas died, leaving surviving him as his sole heir at law, his widow, the plaintiff; that at the time of his death, decedent was earning $18 a week, and was in good health; that said injuries and consequent death of plaintiff’s decedent were caused solely by the negligent, careless and wrongful acts of defendants as aforesaid, and that said negligent acts and conduct were the
The third paragraph was like the first, except that the only negligence charged was the failure of appellants properly to adjust the hog chains so that each would bear its proportionate share of the weight, and that by reason of such faulty adjustment the weight of everything lifted by the crane rested largely upon one of the hog chains, when a proper adjustment would have distributed the weight to four.
The fourth paragraph was substantially like the third, except that the negligence charged against appellants was their failure properly to inspect the traveling crane, and their consequent failure to discover that the hog chains were improperly adjusted.
Appellants filed an answer in general denial to each paragraph of the complaint, and the issues thus formed were submitted to a jury for trial. The jury returned a general verdict in favor of appellee, and also returned with the general verdict answers to 102 interrogatories submitted by the court. Appellants moved for judgment in their favor on the answers to the interrogatories notwithstanding the general verdict, which motion was overruled and exception reserved, and this action of the court is assigned as error and relied on for reversal.
The interrogatories and the answers thereto, bearing directly upon the facts material to this issue, are as follows: ‘ ‘ Q. Was said traveler so constructed that it was supported by four hog chains? A. Yes. Q. Did each of these hog chains consist of three iron rods? A. Yes. Q. Were such iron rods coupled together by links, so that three of them made a continuous chain extending from one end of the bridge of the traveler to the other end thereof? A. Yes. Q. Was each of these hog chains made of wrought iron? A. Yes. Q . Were the threads cut on each end of each chain by which their diameter was reduced where such threads were cut to about one and five-eighths inches? A. Yes. Q. Was the estimated tensile breaking strength of each of said rods at least 60,000 pounds? A. Yes. Q. If of reasonably good iron, should these four rods have carried at least 240‘000 pounds? A. Yes. Q. Did one of these rods break, and allow the engine upon the traveler to fall, with the decedent upon it, to a stone pile below the traveler, and so cause the death of decedent ? A. Yes. Q. Was there any other cause for the falling of the engine and the death of the decedent, except the breaking of one of the hog chains? A. No. * ® * Q. Was the rod that broke crystallized at the point of fracture at the time it broke? A. Yes. Q. Did such crystallization to some extent weaken it at that point? A. Yes. Q. What portion of its original strength, if any, was taken away by such crystallization? A. No evidence. Q. Could this crystallization be discovered in any way before the rod broke ? A. No. Q. If it could be discovered, by what examination or inspection could it have been done before it broke ? A. No evidence. Q. What was there that
The answers to interrogatories, so far as they relate to
Appellants contend that the answers to interrogatories clearly show that they did not know that the hog chains were defectively adjusted, and that they could not have known this fact by reasonable inspection.
The first interrogatory relied on is the twenty-sixth, in which the jury find that there was never any indication at any time, before the accident in which decedent lost his life, that the traveler was not strong enough to carry the loads placed upon it. It is claimed by appellants that this amounts to a finding that the defective adjustment could not have been discovered by inspection, the argument being that an inspection could only disclose defects of which there was some outward indication, and if there was nothing to indicate the weakness of the machine, that an inspection could not have disclosed it. This interrogatory, when considered in connection with the ones directly preceding it, which relate to the length of time the machine had been used, and weights that had been lifted by it, must be construed to mean that nothing had developed in the use of the machine in the past that would indicate that it was not strong enough to carry the loads that were put upon it. It may be true that the machine may have been used for years in lifting weights similar to the one under which it broke, and that nothing occurred or developed in such use that would indicate a weakness or defect, and still a defect might exist that could readily be discovered by a careful inspection of its various parts.
The general verdict finds that the defective adjustment eould have been discovered by reasonable inspection and the
What has been said in reference to interrogatory twenty-six, applies with equal force to interrogatory twenty-seven. By the thirty-fourth interrogatory the jury find that appellants believed and had good reason to believe that the hog chain that broke was sufficient to carry the loads to which it was subjected in their business, without danger, up to the time plaintiff’s decedent was killed. The fact that appellants believed the machine to be safe, and had good reason so to believe, would not excuse them from liability, if it was in fact defective, and if such defect could have been discovered by a reasonable inspection.
Interrogatories fifty-nine and sixty-one find that when the traveler lifted the stone under the weight of which it broke, and while it was carrying it to the place where it was about to be deposited, there was nothing to indicate that the rod that broke was not strong enough to carry the stone; and that, until the rod broke, there was nothing to indicate that any part of the traveler was not sufficiently strong to carry the stone. What we have said in discussing interrogatory twenty-six applies with equal force to these. We may also add in reference to these interrogatories, that they find only that there was nothing to indicate that the parts of the traveler were not sufficiently strong; they do not find that there was nothing to indicate that the parts were not properly adjusted.
Appellants filed a motion for a new trial, which was overruled and exceptions reserved. The causes assigned for a new trial, and relied on for reversal, are (1) the giving of instruction twenty-five; (2) the giving of instruction thirty-
In this instruction the court undertook to inform the jury what facts appellee was required to establish in order to entitle her to a verdict. Such an instruction amounts to a direction to the jury to return a verdict in favor of plaintiff, if the facts enumerated therein are established by the evidence, and that the facts-so enumerated are sufficient, if established, to warrant such a verdict, unaided by any other facts: If such an instruction omits from the facts enumerated one or more facts, proof of which is essential and necessary to a recovery by plaintiff, it is erroneous. An instruction that is erroneous for this reason cannot be cured by the giving of other instructions that correctly state the law. American, etc., Tin Plate Co. v. Bucy (1909), 43 Ind. App. 501; Lake Shore, etc., R. Co. v. Johnson (1909), 172 Ind. 548; Pennsylvania Co. v. Ebaugh (1899), 152 Ind. 531. Before plaintiff was entitled to a verdict, it was necessary for her to prove that her decedent had no knowledge of the defective condition of the machine which caused his death, and also that he could not have known of such defects by the exercise of ordinary care. It will be observed that this instruction makes no reference to decedent’s knowledge or want of knowledge of the defects mentioned in said instruction. If the jury obeyed this instruction, it could return a verdict in favor of the plaintiff, even though it failed to find from a preponderance of the evidence that decedent had no knowledge of the defects complained of, or even though it was satisfied from the evidence that he did possess such knowledge. The giving of this instruction
As a new trial must be granted for the error already pointed out, it is unnecessary to prolong this opinion in the consideration of other errors assigned, as the same questions may not arise upon a second trial.
Judgment reversed, with directions to grant a new trial.