20 Ind. App. 502 | Ind. Ct. App. | 1898
On a former appeal in this cause it was determined that in the special verdict then under consideration it was not sufficiently shown that the plaintiff was free from contributory fault. Keller v. Gaskill, 9 Ind. App. 670. Upon a return of the cause for a new trial, it having been suggested that the plaintiff, Frank Gaskill, had reached his majority, his next friend was discharged, and thereafter the cause was prosecuted by the plaintiff in his own name alone, against the original defendant, Josiah O. Keller, now the appellant, and Anna Keller, who was made an additional defendant in an amended complaint in two paragraphs. The issues formed were tried by jury, a.nd a special verdict was returned.
A motion of the defendant Anna Keller for a new trial was sustained. A like motion of the defendant Josiah O. Keller was overruled, and judgment was rendered against him on the special verdict. He appeals, naming his codefendant and the plaintiff as appellees in the assignment of errors. The overruling1 of the joint demurrer of the defendants to each paragraph of the second amended complaint being assigned as error, it is claimed in argument that neither paragraph of the complaint stated facts sufficient. The learned counsel for the appellant suggest that both paragraphs of the complaint are objectionable on the ground that neither shows such a condition as made it obligatory upon the appellant to warn the plaintiff of his hazardous attempt, and that neither shows that he was free from contributory negligence. On the former appeal it was decided that the second paragraph of complaint was sufficient to withstand a
It is alleged in each paragraph that the plaintiff was free from fault, and in view of the allegations concerning his youth and inexperience and the nature
The facts were shown by the special verdict substantially as follows, omitting some matters relating only to the defendant Anna Keller: The defendants owned and conducted at Port Wayne, Indiana, a manufacturing establishment, engaged in making dental tools and appliances. At and before the time of plaintiff’s injury the factory consisted of a large four-story building, in which there was a steam engine, by which power was supplied to run and operate machinery, shafts, belts, pulleys and appliances which were in the factory. In July, 1890, the plaintiff, then about seventeen years and eight months of age, applied for employment in the factory to the defendant Josiah O. Keller, who in all matters relating to the employment and direction of the plaintiff, acted for himself and his codefendant, and as general manager. The defendants in said factory, made dental engine burrs, the manufacture of which required skilled labor, and constituted a trade by itself; and the plaintiff applied for employment to learn that trade. Within three days thereafter the plaintiff’s father went to the defendant Josiah Keller, and conferred with him relative to the employment of the plaintiff to learn that trade, and said Josiah then took plaintiff’s father into the room where such dental engine burrs were made and showed him what the work of making them consisted of; and it was thereupon agreed by the parties that the plaintiff should be taught that trade, and that he should at once begin work on the easier and simpler branches of the trade, and that as his skill in
It was further found that the plaintiff did not know, before he was injured, that the set-screAv and collar were on the line shafting; that they were open to view, so that they could have been seen if he had looked; that he did not voluntarily proceed to repair the belt when he was injured; that at the time of his injury he attempted to throw the cord belt across to the other side of the pulley; that when he did so he put his arm over the set-screw, which Avas revolving on the line
The appellant’s motion for a ven ire de novo was overruled. It is contended on behalf of the appellant that the findings are contradictory. The verdict was rendered by way of answering interrogatories submitted to the jury at the request of the attorneys. It is quite lengthy, and manifests much labor on the part of the able attorneys who prepared the interrogatories. In view of the claim of want of consistency in the answers of the jury, we have taken the great space necessary to substantially exhibit the findings. We think there is no such ambiguity as to render the verdict insufficient to sustain a judgment. As has been frequently said by our courts of appeal, special verdicts should not be subjected to such nice criticism as to defeat justice. All the parts should be considered together, with a view to harmonize them, if this be possible, without violating the apparent sense of any material finding when so compared with all other parts of the verdict. Without taking space to particularize,
A motion of the defendants for a new trial was overruled. It appears that of the interrogatories proposed by counsel for defendants to be answered by the jury in returning a special verdict the court refused to so submit to the jury the following: “Was Thomas Cor-penning a co-employe with the plaintiff at the time of the injury?” Jt was plainly shown by answers given by the jury to other interrogatories submitted by the court that the plaintiff was an employe of the defendants, and that Corpenning also was their employe; and it was in like manner shown in what capacity and in what relation to each other they worked. It was shown that they were both employes of the defendants; that they were co-employes. It could not have benefited the appellant to have obtained an answer to the question concerning Corpenning which, was rejected. Perhaps no more need be said, but the question whether or not the facts exist which make two or more persons fellow servants in the legal sense is a question of fact, but the definition of a fellow servant in that sense is a matter of law. When the facts have been put. beyond dispute by the finding of the jury in a special verdict, it then becomes a question for the court to determine whether or not those facts bring the matter within the legal definition of a fellow servant. Dube v. City of Lewiston, 83 Me. 211, 22 Atl. 112; Dealey v. Philadelphia, etc., R. R. Co., 16 Phil. 122; Lake Erie, etc., R. R. Co. v. Middleton, 142 Ill. 550, 32 N. E. 453. It may be also said here, as was said in Atlas Engine Works v. Randall, 100 Ind. 293, 50 Am. Rep. 798: “The master having subjected the servant to the command of another without information or caution with respect to all such obligations as the
The refusal to submit certain other interrogatories, inquiring concerning the several amounts allowed by the jury as separate items in the assessment of damages, is presented as ground for a new trial. In Ohio, etc., R. W. Co. v. Judy, 120 Ind. 397, an action to recover damages for physical injury suffered through the defendant’s wrongful act, it appears from the opinion of the court that interrogatories were submitted “requiring the jury to itemize the damages allowed, stating how much they allowed for humiliation and mortification, how7 much for mental suffering, how much for physical suffering, and so on, with the different items for which damages are assessable, and answers were made to these interrogatories.”
The Supreme Court held that this was not proper practice, that “damages were assessable for all the injuries sustained, and the jury cannot be required to itemize and assess a separate amount for each element entering into and making up the gross sum allowed. As well it might be required of the plaintiff in his complaint to set forth the particulars of his claim for damages, alleging wdiat amount of damage he sustained by reason of mental suffering, and what on account of physical suffering. This certainly could not be required in pleading, neither can it be required of a jury to assess the damage for each separately in a case of tort.” The court in that case refused to consider the separate items stated by the jury in. answer to interrogatories. The items concerning which inquiries were proposed in the case at bar were such as need not be specially pleaded, and, under the authority of the case last mentioned, we are constrained to hold
It is claimed for the appellant that some of the findings in the special verdict were not sustained by sufficient evidence, but we are of the opinion that we could not reverse the judgment upon that ground ydthout invading the province of the jury and the trial court
Finally, it is insisted that there was error in overruling the appellant’s motion for judgment on the verdict. The portion of the opinion of this court upon the former appeal quoted above relating to the negligence of the appellant, is applicable to that branch of the case as presented by the verdict now under review, which, by its statement of facts, shows a duty on the part of the appellant to'ward the plaintiff, and the injury of the latter through the failure of the former to discharge that duty.
The former judgment was reversed for the reason, as already stated, that it was not sufficiently shown by the special verdict then before the court that the plaintiff was not chargeable with contributory negligence. We think that fault in the verdict has been sufficiently remedied on the last trial. On the former appeal it was said by the court: “We fully agree with the appellee’s learned counsel that, under the peculiar circumstances, as to age, experience, etc., of the appellee, the question of contributory negligence is one for the jury. * * * We are furthermore disposed to adopt the definition of what constitutes due care in a case like this, as given by appellee’s counsel from the cases cited by them, viz: Must such care as boys of that age, of ordinary care and prudence, would use under like circumstances,’ and ‘that a child is held to •no greater care than is usually possessed by children of the same age.’ But although a boy of the age of appellee is not required to use as much care as an
Counsel for the plaintiff seem to have been guided by these suggestions. The facts relating to plaintiff’s situation, capacity, and conduct are fully stated, and the jury found it to be “a fact that during all the time after said broken belt came to his notice until his injury the plaintiff was exercising such care as persons of his age and capacity would and do exercise under the circumstances.” It was also stated by the jury to be “a fact that in all he did and omitted to do in the premises plaintiff exercised the skill which he possessed, and acted with reasonable care under the circumstances,” and that he “possessed only such prudence, judgment, and skill as are generally and ordinarily possessed by inexperienced boys of his apparent age,” which “was from fourteen to fifteen years of age.” The special verdict seems to fulfil the requirements of the decision of the ca se on the former appeal. The judgment is affirmed.