5 Ind. App. 482 | Ind. Ct. App. | 1892
This case was tried in the Marion Circuit Court. The complaint was in three paragraphs, to which a general denial was filed. Upon the issue thus joined the case was submitted to a jury, resulting in a judgment for the appellant, who was the plaintiff below. Thirty-one interrogatories were submitted to the jury upon the request of the defendants below. These interrogatories were answered by the jury and returned with the general verdict. After the verdict- and the answers to the interrogatories were returned, the appellee moved for a judgment against the appellant notwithstanding the general verdict. This motion was sustained by the court, and a judgment rendered in favor of the appellee. Exceptions were reserved by the appellant, and an appeal taken to this court. The action of the court in sustaining the appellee's motion for a judgment is the only question submitted for our consideration. The evidence is not in the record. This leaves the answers to the interrogatories as the only source of information we have concerning the facts involved in the case.
Neither the general manager nor the superintendent was present when the accident occurred. There was no evidence showing that they or any of the officers of the company had knowledge of the defective condition of the crow-bar used, or that it was provided for the purpose for which it was used. It does not appear that the bar was in any wise defective save as above mentioned. It did not break while
The rule is well settled that a master undertakes to exercise reasonable care and diligence in providing his servants with safe appliances and surroundings, while at the same time the servant “ ordinarily assumes all of the incidental risks of his employment, and those which are patent and within the reasonable range of his observation.” Evansville, ete., R. R. Co. v. Doan, 3 Ind. App. 453.
The case of Rietman v.Stolte, 120 Ind. 314, involved questions very similar to the one before us. In the course of the opinion Olds, J., says: “ The rule of law * * requires one to exercise the faculties which he possesses, and if there is a patent defect in a tool or machinery used by him which he can see by looking, he must look, and unless some reasonable excuse is given he is guilty of negligence if he does not look.” See Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151.
Equally well settled is the rule of law that if a servant is injured by the negligence of a fellow-servant, without the fault of the master, the master is not liable. Taylor v. Evansxille. etc.. R. R. Co., 121 Ind. 124
The facts, as they appear in the record, show that the appellant, and those with whom he was working at the time he was injured, were fellow-servants; that Lapham, at the time, was not acting as a vice-principal nor engaged in performing the master’s duties; he was simply assisting those with whom he was working in performing the labor in hand. While doing this, he told the appellant to get a crow-bar and spread the rails so he could insert the splice-block. He did not direct him to get the crow-bar in question, nor is it shown that he directed the manner in which it should be used, nor that he had any knowledge whatever that the tool was in any wise defective. As to whether, in a given case, a person is acting as a fellow-servant or a vice-principal is a conclusion to be drawn from proven facts and circumstances. Considering the facts in this case as they appear in the record, we are clearly of the opinion that the court below did not err in rendering judgment in favor of the appellee, notwithstanding the general verdict.
The judgment is affirmed, with costs.