19 Ind. App. 535 | Ind. Ct. App. | 1897
— Action by appellee to recover dam1 ages for personal injuries occasioned by the alleged negligence of appellant. The complaint is in two paragraphs, but as it is conceded that the verdict was on the second paragraph, we do not set the first out. The second paragraph alleges that the defendant was the owner of a factory, and before hiring plaintiff, constructed an underground cistern near the factory to receive through pipes large discharges of steam, hot water and other fluids, and permitted the same to soak away through the bottom. The' cistern was walled with loose bricks, not cemented to protect it from the action of the materials discharged into it.
A motion to make this paragraph more specific and a demurrer to the same, were both overruled and appellant answered by general denial. The jury returned a special verdict. Both parties moved for judgment thereon. The court overruled defendant’s (appellant’s) motion, and sustained that of appellee, and rendered judgment in his favor for $3,500.00. The errors assigned are, first, overruling the motion to make the second paragraph more specific; second, overruling the demurrer to the second paragraph of appellant’s complaint; third, overruling appellant’s motion for judgment upon the special verdict; fourth, overruling appellant’s motion for a new trial; fifth, sustaining appellee’s motion for judgment in his favor.
The fourth assignment is the overruling of appellant’s motion for a new trial. The first reason assigned in the motion for, a new trial, is the sustaining of the objection to the following question propounded to appellant by his counsel: “What has been your experience as to the use of dry wells in your own business?” Counsel for appellant stated at the time that the witness (defendant) was not on the stand as an expert, but he built the dry well or ordered it built, and he offered to show that the appellant after long personal experience with dry wells in his own manufactories, and that added to his experience with the dry wells subject generally, was what guided him in building this well. The court said, “You may ask him all about this dry well.” Appellant’s counsel thereupon propounded to the witness questions as to the tendency of pipes conveying steam and waste water from steam pipes to get dirty or foul; whether a dry well constructed as described by witness was likely to become stopped up with the amount of water running into it, that ran into the dry well in question; as to the objects of the outlet valves of the steam boxes; the nature of the ground in which the dry well was built; to each of which he made answer. Witness had previously testified as to how a drain or dry well should be constructed. He was given the privilege of telling how this one was constructed. We cannot see, therefore, that he was harmed by this ruling of the court. The second reason for a new trial is the permission of the witness
The third reason for a new trial is the admission of the testimony of plaintiff (appellee) as to the probability of leaks occurring in steam pipes. The question objected to was, “What is the probability of leaks coming in steam pipes, — even in new pipes, — at the joints?” Counsel for appellant objected to the question for the reason “that the complaint is in regard to waste pipes running from steam pipes into a dry well, and unless he can show that these pipes into the dry well were stopped up so that they might have had a much stronger pressure, I object to any such proof.” The jury found that from the manner in which the pipes were placed in the drainage and dry well, and used while so placed, they were liable to become full and choked at or near the mouth, by deposits therein of mud and water and other materials, and that if said pipes so laid should become foul at or near the mouth, there would be in some of them, a high degree of pressure caused by steam coming through the pipes from the boiler, and that by the exercise of reasonable care, these facts could have been known to the defendant. The jury further found' that the pipes were
The fourth and fifth reasons for a new trial are, that the court erred in admitting certain testimony of the witness Ballinger in answer to questions propounded to .him, which were objected to. The first was, “What is the fact as to whether steam pipes when there is steam in them, — whether leaks will come into them or not?” The objection should have been sustained, because of the indefiniteness of the question. Whether leaks would come into pipes, would depend upon a variety of causes. The witness gave an answer, not, however, in response to the question but to the effect that a leak in a pipe would not be discovered without pressure was applied, unless the opening was large enough to be seen. The statement could not have misled the jury. The other question was, “What is the fact when a leak does come in a steam pipe, as to whether it increases it, and if so, whether rapidly or slowly?” The objection to this question was that it related to pipes that had pressure from the boiler, and not to the pipes that are described in the complaint, and it tended to mislead the jury.” What we have said as to the findings of the jury, as to the pressure in the pipes, upon the previous question addressed to this witness, will apply to this objection.
The sixth reason given, is that the court erred in admitting in evidence the testimony of witness Ballinger, as to the effect of hard water in a boiler and pipes through which it passes. The witness in answer to the question immediately preceding the one under consideration, had stated, that soft water was not so likely to corrode pipes as hard water; which answer was followed by the question whether, when hard water was used, there was a deposit from it in the boiler and pipes from which it passed. The
The seventh reason for a new trial is the exclusion of the evidence offered by defendant of witness Charles C. Brown, a civil engineer, who in September, 1894, inspected the dry well,and dug out the drainage in question, at the request of the appellant.
Counsel for appellant stated to the court at the time of this ruling, that he wanted “to show how it was when inspected by a disinterested man at that time and that he expected to show the condition of the well and the other matters found there.” No other statement was made as to what he expected to prove in answer to the question. This was an offer to prove the condition of the well sixteen months after the injury of the plaintiff, and its condition at that time, was not material. To save a question on the ruling of the trial court in excluding the testimony of the witness upon an objection being made to a pertinent question, a specific statement by way of an offer, must be made to the court of the testimony which the .witness will give in answer to the question. The offer of proof must be a statement of the particular fact or facts and if the bearing of the proposed testimony is remote and inferential, its relevancy must be suggested. Chicago, etc., R. W. Co. v. DeBaum, 2 Ind. App. 281; Lewis v. State, ex rel., 4 Ind. App. 504; Stanley v. Holliday, 130 Ind. 464; Russell v. Stone, 18 Ind. App. 543, and the authorities there cited.
The eighth reason is that the damages assessed are excessive. Appellant’s learned counsel frankly ad
The ninth reason is, that the verdict is not sustained by sufficient evidence. The verdict consists of 187 interrogatories and answers. Counsel for appellant, in his able brief, designates and discusses numbers 11, 12, and 126. It will be presumed that the interrogatories not pointed out are sustained by some evidence. There are apparent contradictions in the evidence, and it was for the jury to reconcile them. Interrogatory 11 reads: “Was said dry well when constructed, applied to the purpose of receiving through pipes from said manufacturing establishment, discharges of steam and hot water with the intention of permitting the same to seep and soak away through the ground from said dry well? Answer. Yes.”
Interrogatory 12 reads: “Was said dry well continuously applied to said purpose by the defendant from the time of its construction until the 10th of May, 1893? Answer. Yes.”
It is contended that there is no evidence to warrant the finding that the dry well was constructed either for the purpose of receiving discharges of steam or that prior to the employment of appellee it had been
Interrogatory 126 reads: “At the time of plaintiff’s injury were said waste pipes of said well stopped up? Answer. Yes.” In view of the fact that the day after the accident the well was uncovered, and found .to be filled some feet above the mouths of the pipes with mud and water, we cannot say that the jury was not justified in finding as a fact that the pipes were stopped up. The tenth and eleventh reasons are not discussed, and are therefore waived.
The twelfth reason is the refusal of the court to submit the following interrogatory in the draft of the special verdict prepared by defendant’s counsel. “When said dry well was opened to be deepened, was the same in good condition?” The dry well was opened in July, 1892, and the accident occurred in May, 1893. Appellant contends that the evidence shows it was in good condition at that time, and that the evidence was competent as tending to show its condition at a later time. The office of the special verdict is the finding of ultimate facts. The ultimate fact to be found by the jury, was its condition at the time of the accident. A finding of its condition prior to that day would have been the finding of an evidentiary fact. The interrogatory was properly refused.
The refusal to submit the following interrogatory, number 109, is given as the fourteenth reason for a new trial. “If the steam inside said dry well exerted any appreciable pressure, would the same exert any appreciable effect on the soil outside said brick wall?” The question is objectionable because it is hypothetical, and was properly refused.
The fifteenth reason for a new trial is, that the court erred in submitting to the jury its own draft of a special verdict. The bill of exceptions shows that the counsel for appellant excepted to the giving of certain interrogatories, and not as contended, to the verdict submitted by the court. The purpose of the statute in requiring the counsel of either side to prepare a special verdict, is to relieve the court. It has been held by this court, that the trial court may alter interrogatories prepared by counsel, and of its own motion frame additional interrogatories. This exception is not well- taken and it is not, therefore, necessary to decide the question raised in appellant’s brief. If the trial court saw fit, to assume the burden of drafting another special verdict, neither party would have cause to complain.
The reasons for a new trial from sixteen to thirty-six inclusive, are upon alleged errors in the submission of interrogatories to the jury. The following are the recitals in the bill of exceptions. ' The court submitted to the jury its drafts of its special verdict prepared by the court, and the defendant objected to the submission to the jury of the interrogatories in said draft, numbered respectively, 148, 150, 151, etc., which said interrogatories were in the words and figures following, to-wit:
“(Heretofore inserted being on page of this
The following is a fair summary of the facts found by the jury, omitting conclusions of law and findings not essential to the decision of the cause:
The defendant’s factory on May 10th, 1893, consisted of a main building about 250 feet long from east to west, ■ partly three and partly four stories above the basement, with a lumber shed and dry kiln extending south from the main building at the west end thereof and with an engine room and a boiler room extending from south of said main building to a point some one hundred feet east from the west end of the main building. An enclosure on three sides of an area of ground lying south of the main building was thus formed, which was owned and occupied by defendant as a part of the premises of his manufacturing establishment from May, 1892, to May 10th, 1893, inclusive. About May 30th, 1892, defendant caused the construction under ground on said' premises, of the dry well in question, located about fourteen to sixteen feet south of the main building and west of said engine room and east of the lumber shed and dry well. In constructing said well, he caused to be laid in a trench, three pipes, extending from said factory into said well, covered with two boards lengthwise of said trench, forming an inverted
The well was dug by one Henry Holt, an employe of defendant, and a laborer employed with him. It was rewalled by Holt in July, 1892. Holt was not a brick-mason nor a mechanic, but a common laborer. The north edge of the well was about eighteen feet and three inches south of said factory. It was dug in circular form about ten feet down to gravel. When first constructed, the trench and dry well were left open a couple of days. The well was used before the trench containing the waste pipes and before the well was
The defendant was not familiar with the use of dry wells for the purpose for which this well was intended. Plaintiff, at or before the time of his injury, knew that said well was walled with bricks, not. cemented, and that the pipes were laid with their mouths turned upward, and were laid in a trench under said boards. Plaintiff was injured on the 10th of May, 1893, about four o’clock in the afternoon, when acting as engineer in said factory, by breaking through a crust of earth near said dry well and sinking into and below the hot mud about four feet deep, two feet north of the north edge of said dry well. The boiler room had a door opening into the yard where said well was located. The boiler and engine rooms were located east of said dry well and extending south from said main building. About three feet south of the main building, in said factory yard, and about seven feet east of the trench in which said pipes were laid, there was a valve. When the plaintiff broke through the ground he was not at said valve. He had gone into the yard to look after the steam, near the valve, he saw rising. He was on his rounds at the time he broke through. There was at said time in said yard, directly south of said valve, a large cistern, about eighty-one feet from said valve. A line direct from said valve to said cistern, would pass about three feet east of the east side of said dry well. When
The superintendent of the factory many times complained to the plaintiff, that steam was being wasted through said dry well. At the time of his injury, plaintiff regarded said dry well as dangerous. At the time plaintiff was injured, he went into the yard to look after the escaping steam. Just before he was injured he went from the boiler room into the yard. He could, by means of valves in the engine room, diminish the steam passing into said steam pipes from said basement. At the time plaintiff was injured, said waste pipes were not bursted. In carrying on said factory, teams and vehicles were daily driven into said yard, around said well, and over the top thereof. It was necessary to use said yard over the top of said well for teams and vehicles, for the purposes of said factory. The men in charge of the dry boxes in the basement were in the employ of the defendant. The workmen using said dry boxes in said basement, adjusted the inlet and outlet valves.. When the trench was filled after laying said waste pipes, the material put back therein was not well packed. When the, plaintiff broke through the ground at the time of his injury, he was standing directly over said waste pipes and two or three feet north of said well. At the time plaintiff received his injury, it was his
lie failed in said duty, in failing to leave said dry well so it could be inspected. At the time plaintiff was precipitated into said hole, he was scalded and injured in his legs, arms, hands, and other parts of his body, and on his face, and rendered sick and disabled. He was confined to his bed five months, and caused great pain and suffering. Ever since said injury he has been lame in his foot and his hands, and continually caused to undergo more or less pain and suffering,and has ever since been incapable of following his ordinary vocation of an engineer, and has been more or less permanently lame and disabled.
After eliminating from the verdict findings which are conclusions of law, there yet remain facts found showing that the negligent construction and maintenance of the well and connections with the pipes conveying hot and cold water caused the injury to the appellee for which he sues. He had the right to act upon the belief that the ground over which he walked
Appellant’s able counsel contend that it was the improper admission of steam into the well which rendered it unfit for the uses for which it was intended, that this improper use was the result of the negligence of the fellow employes of appellee, and that, therefore, appellant is not liable. This rule
Appellee, in his examinations before trial, and while testifying as a witness, was not always, as pointed out by appellant’s counsel, consistent in his statements as to his exact position at the time he received his injury, and what he had been doing, and what he intended to do, immediately preceding the accident. The jury, as it was their province, doubtless gave due consideration to these apparent discrepancies, and gave proper weight to his testimony. The main facts are not in dispute, the manner of the construction of the well; the connections, and uses to which it was put; the condition of the ground; the place, manner, and character of appellee’s injuries. We have examined the voluminous record with care, and find no errors for which the judgment of the trial court should be reversed. Judgment affirmed.