70 Ind. App. 493 | Ind. Ct. App. | 1919
This was an action for damages commenced by the appellee, as administratrix of the estate of Anthony Albin, to recover damages sustained by reason of the death of said Anthony Albin, alleged to have been caused by the negligence of appellant in failing „to guard a certain hog-scraping machine. The case was tried by a jury, and resulted in a verdict and judgment in favor of appellee. The jury, in connection with their general verdict, answered certain interrogatories. The appellant’s motion for judgment on the interrogatories notwithstanding the general verdict was overruled. Appellant filed a motion for a new trial, setting out thirty-seven specifications or reasons why a new trial should have been granted. This motion was overruled, and the errors assigned are that the court erred: (1) In overruling the motion for judgment on the interrogatories and answers thereto; and (2) in overruling the motion for a new trial.
It is also alleged that said decedent left surviving him his widow, Matilda Albin, and eight children; that said widow and two of the children were dependent upon him for their support, and demanding damages.
The answer was a general denial.
The jury, by their answers to the interrogatories, found the facts to be substantially as follows: Decedent was the foreman in charge of the machinery in question, and had been in charge of such machinery for many years; it was a part of his duty to make repairs to such machine, and just prior to his injury he and his assistant had finished doing so; he then told his assistant to start the machine; to do so it was necessary for decedent’s assistant to pass out of his sight; said assistant, when starting the machine, was
The answers of the" jury to the interrogatories do not disclose any facts or state of facts that throw any light on how the accident happened. Whether the deceased went back to the machine, after his assistant went upstairs, and started it for the purpose of watching it so as to see that it was in working order and slipped and accidentally fell into it, or whether he attempted to make some adjustment on the machine is not disclosed.
Did the court err in overruling appellant’s motion for a new trial!
When the jury returned into court with- their general verdict and answers to the interrogatories appel
These interrogatories and the answers thereto are: (11) Did the decedent, immediately before the accident in question, voluntarily step upon the platform? A. No. evidence. (13) Did decedent put his head between these two shafts while the machine was in motion? A. No evidence. (15) Did the decedent step upon said platform at the north end? A. No evidence. (23) Would the accident have occurred if decedent had caused the machine to be stopped before going into it at the time of his accident? A. No evidence that he went in at the time of accident. (41) Upon each occasion when this repair or adjustment was made, did the decedent or his assistant or both of them, go into the machine from the same direction that decedent entered it immediately prior to the accident in question? A. No evidence. (54) When said machine was in motion was such fact perfectly obvious to one looking at it when within eight feet from the north end thereof? A. No evidence. (This is the first answer returned to said interrogatory No. 54.)
Appellant’s motion was that the jury be required to retire and make further answer to each of said interrogatories for the reason that “there was evidence introduced in the course of the trial from which each of said interrogatories could and should have been answered otherwise than as they were answered.” Appellant insists that each of these interrogatories was proper, and that there was evidence on the subject inquired about in each interrogatory; that Edward McCloud, who was one of appellant’s witnesses, testified as to the facts asked about.
8. A party submitting proper interrogatories has the right to have them answered fairly and fully (Indiana Union Traction Co. v. Swafford [1913], 179 Ind. 279, 100 N. E. 840), but it is not available error for the court to refuse to require the jury to retire and make more definite answers, if the
The appellant next contends that the answers to interrogatories Nos. 46, 53 and 54 are not sustained by sufficient evidence. These interrogatories and answers are as follows: (46) Did the decedent have the authority, if in his opinion it was necessary or desirable that the north end of said hog-scraping machine should be guarded, to see that a guard was placed thereon? A. No. (53) Did the accident occur while the decedent was attempting to make some adjustment of said machine while the same was in motion? A. No. (54) When said machine was in motion was such fact perfectly obvious to one looking at it when within eight feet from the north end thereof? A. No evidence.
It is clear that, even though the jury had answeied Nos. 46 and 54 in the affirmative, such answers would not have controlled the judgment. A different judgment would not have been rendered as a result of such affirmative answers. ■
Interrogatory No. 53 is double. The evidence showed without conflict that the machine was in mo
Complaint'is next made of the refusal of the court to give certain instructions tendered by appellant.
Instruction No. 3, given by the court on its own motion, was in part as follows: “By burden of the proof is meant a preponderance of the evidence. Such preponderance is not necessarily the greater number of witnesses testifying to any one fact, but the evidence applying to that particular fact which is greater in weight arid credibility.
“If after considering all the evidence in the cause you should find that the evidence on any given question is evenly balanced, you should find on that question against the party having the burden on such issue, for in such case there would be no preponderance in favor of such proposition. ”
We have examined all the instructions given of which complaint is made, and find no reversible error.
The next contention of appellant is that the verdict is not sustained by sufficient evidence. That thé appellant was negligent -in failing to guard the machine that caused the deceased’s death is not seriously questioned. The evidence, without conflict, is that it was not guarded, and that it could have been guarded without interfering with its usefulness; that the machine was stopped while the deceased and his assistant made some adjustments; that when the adjustments were made the assistant stepped to his place about twelve feet from the machine, and out of sight of the deceased, and started the machine; that after the machine had been running about two or three minutes the assistant heard a noise as if something was wrong with the machine; that he stopped the machine and went to investigate, finding the deceased, head foremost in the machine dead. The only question remaining in the case for further consideration is whether the deceased was- guilty of negligence
Edward McCloud was a witness for appellant, and was the only witness who claimed to have been present and to have seen the accident. At the time of the trial he was a prisoner in the Marion county workhouse, and his testimony was given in a deposition which was read to the jury. He testified that he was thirty-seven years of age; that he was working for appellant at the time the deceased was killed; that he saw the accident; that when he first saw the deceased, he, deceased, was standing right down in front of the hog-scraper and was off the platform and about three feet from the machine; that he had just come out from under there and told his helper, Arnold Cornelius, to start the machine; that the helper went upstairs and started the machine; that the reason witness was down on the floor where the accident hap: pened was that the machine was stopped, and that he just walked around downstairs looking around; after the helper went upstairs the deceased stopped there a few moments looking, and then he went ahead and went under the machine like he was going to rake something out; that was after he told the assistant to start it; he had been under there once, and had come out and told his assistant to start it; that is when he went back the second time; there was the machine and iron rods that go across and a little platform that he could step on; the platform was about two feet wide and not over iy2 feet high; he just stepped on the platform and stuck his head right down under there when his foot slipped; the machine was going then; had been going about- five minutes; he
We find no reversible error in the record.' Judgment affirmed.