30 Ind. App. 546 | Ind. Ct. App. | 1903
The appellee, as administratrix of the estate of William Unverferth, deceased, brought this action against-appellant, alleging that appellant negligently caused the death of appellee’s decedent. The complaint was in three paragraphs. It appears from its averments that appellee was the widow of the deceased. A general denial was filed to the complaint, and a trial resulted in a verdict and judgment- in favor of appellee for $4,500.
The right of the personal representative of the deceased to sue is properly raised by the demurrer for want of facts. Boyd v. Brazil Block Coal Co., supra. The want of an allegation in the complaint that there were ten or more men used in and about such mine is also pointed out as a fatal defect, because the statute in question is only applicable to mines in which at least ten men are employed. These objections are well taken.
The complaint avers negligence on the part of appellant, resulting in the death of appellee’s decedent, the freedom from negligence of the decedent, and that he did not assume the risk incurred, and is good under the general statute, §285 Burns 1901.
The answers to interrogatories are not in such irreconcilable conflict as to overthrow the general verdict. It remains only to pass upon the sufficiency of the evidence to sustain the general verdict.
Appellee has filed no brief, and no argument is therefore offered in support of the rulings of the trial court. There is no conflict in the evidence. Xo evidence was introduced by appellant. The decedent was an adult, a miner of experience, engaged in the work of loading coal from under the ledge that fell, and was not injured while passing through the entries or down the shaft of the mine. He
Judgment reversed, with instruction to sustain appellant’s motion for a new trial.