49 Ind. App. 629 | Ind. Ct. App. | 1912
This was a suit by appellee for personal injuries alleged to have been sustained by him while in the employ of appellant in its coal mine.
The action was founded on the alleged violation by appellant of common-law duties which it owed to appellee as one of its employes.
It appears from the complaint that appellee was in the
The complaint is in four lengthy paragraphs, and we think a copy of them unnecessary to a correct understanding of the questions presented by this appeal.
The theory of the first paragraph is that appellant was guilty of negligence in allowing and permitting said water-pipe to be too near the east rail of said track over which said coal-cars were operated; that said pipe, after coming out of said room off of said entry and crossing under the track, made an elbow at the point where it turned to run parallel with said track, which elbow was perpendicular, and extended from two and one-half to three inches above the top of said rail, and so near to it. that cars operated thereon were likely to strike said pipe, and be thereby derailed; that
The second paragraph of the complaint, in addition to charging the negligence of appellant with reference to permitting said water-pipe to be too near said track, charges also that appellant negligently loaded with coal a defective and worn-out car, and negligently furnished it to appellee and placed it on the track for appellee, to be used by him in hauling coal, as aforesaid; that the particular defects of the car were that the spindle of said car was so badly worn that it permitted the wheels to be loose and to have more play than was necessary and safe, and that the axle to which said wheels were attached was not securely fastened to said car, but was loose and moved backward and forward under the bed of the car, thereby permitting said car to run in a zigzag manner, which prevented it from running straight and steady on the track, and tended to derail it; that said car was thereby rendered dangerous; that, by reason of the defective condition of said wdreels and axles, the front wheel of said car struck said water-pipe, and said car was thereby derailed. The theory of such second paragraph is, in effect, that appellee’s injuries were caused by the combined negligence of appellant in permitting said water-pipe to be too near its track, and in furnishing appellee, for his use, an old ear defective in the manner set out.
The third paragraph rests solely on the defective condition of the car.
The fourth paragraph also relies solely on the defective condition of the car, and in addition to the defects charged in the second and third paragraphs, alleges that the axle to -which said wheel was attached was not securely fastened to the bed of the car; that the strap fastening it to said car
To each paragraph of the complaint appellant filed a demurrer, which was overruled. The only answer was a general denial. The trial resulted in a verdict for appellee in the sum of $2,600. Appellant’s motion for a new trial was overruled.
There are no specific averments that overcome the general averments that appellant negligently furnished the car in the first instance, and that it knew its alleged condition when it furnished it.
The objections to the third and fourth paragraphs rest practically on the same grounds urged against the second, and need not therefore be further considered. We think each paragraph of complaint good as against the objections urged.
The first paragraph of the complaint alleged, in substance, that appellant knew of the condition of said water-pipe, and its close proximity to the rail of said track over which said coal-cars were operated, and the danger of derailment therefrom. Paragraphs two, three and four, as heretofore indicated, alleged that appellant negligently furnished a worn-out and defective car, and that it knew such condition of said car existed at the time it so furnished it.
Instruction six, which is general, defines the employe’s duty with reference to his being required to observe and avoid all known or obvious perils of the place in which he is working; tells the jury that such employe assumes the risk of dangers arising therefrom, that he is not bound to search for defects; but that he has a right to rely on the master’s
That part of instruction seven, involved in the objection thereto, simply told the jury that it is the duty of the master to know, and the master is presumed to know, of any defects and dangers in his servants’ working place, tools, machinery and appliances, that would have been discovered by the exercise of ordinary care in inspecting them.
Instruction eight relates to the duties of the master to exercise reasonable care to furnish and maintain, in the first instance, safe places, tools and appliances for the employe, and tells the jury that such duty is a continuing one, and that “to the end that the employe’s working place may be kept reasonably safe, it is the duty of the employer to exercise ordinary care to make reasonable inspection for defects and dangers which are not open and obvious, and if the employe is injured without his fault, through dangers and defects of his working place, which could have been discovered and remedied by the employer, by making reasonable investigation, inspection and search for such defects, then the law holds the employer liable for the existence of such defects the same as if they were actually known to him. ’ ’
Instruction number thirteen applies the general principles declared in instructions six, seven and eight to the facts of this particular case. These instructions accurately state the law, and no objection is made to them on account of any error in this regard, but the only objection is that they are not applicable to the issues tendered by the pleadings. We think it clear that the instructions were entirely proper and applicable to the issues tendered by the averments in the first paragraph of the complaint — that defendant knew of the defects connected with its track — and to the issues tendered in each of the other paragraphs by the averment that defendant furnished a defective and worn-out ear, and knew its defective condition at the time it was furnished.
Instructions ten, eleven and twelve, given at the request of appellee, apply to the second, third and fourth paragraphs of the complaint, respectively, and practically the same objection is made to each of these instructions as is urged against instruction one.' "What we have said in reference to the objection to instruction one, applies to ten, eleven and twelve, except we should add that none of said last-mentioned instructions contains any statement that the respective paragraph of complaint to which each respectively applies contains the averment complained of in instruction one; but each contains the same statement of the law applicable to appellants knowledge as that considered in instruction one, and, for the reasons there stated, were proper and applicable to the issues tendered by the respective paragraphs of complaint to which they were addressed.
On these questions it is sufficient to say that there is apparent conflict in the evidence. Three witnesses, however, located the water-pipe south of the north wall of the breakthrough, where appellee’s car going north was wrecked. "Witness J. J. Cliff said that this pipe went under the track at a point about two or three feet south of the north wall. In answer to a question as to how far south of the north wall of the break-through the water-pipe came, witness Joe Nuckles answered: “From eighteen inches to two feet from the north wall.” Witness Major Gardner located the elbow in the pipe from eighteen inches to two feet south of the north side of the break-through.
The derailed ear was resting against the north wall of the break-through. Appellee testified that at the time the car left the track it struck something that gave off a metallic sound. Appellee testified that he discovered, after getting on his car and starting down the incline that he had a bad ear; that it had a zigzag motion, and pulled to the right some six or seven inches. Other witnesses testified to the condition and character of the car which would cause it to have such zigzag movement.
We think we have indicated enough of the evidence to show that this court cannot say that there was no evidence to sustain the verdict, but, oh the contrary, under the well established rules of this court there was enough to prevent a reversal.
Judgment affirmed.