60 Ind. App. 366 | Ind. Ct. App. | 1915
Appellee recovered a judgment in the sum of $1,500 against appellant on account of an injury to his left eye, which occurred while he was' operating an emery wheel in appellant’s factory.
The errors relied upon for reversal are: (1). the complaint does not state facts sufficient. to constitute a cause of action; (2) error in overruling appellant’s motion for judgment on answers to interrogatories notwithstanding the general verdict; (3) error in overruling appellant’s motion for a new trial. •
The substance of the complaint, the theory and sufficiency of which becomes material in an examination of each of the errors presented, is as follows: On .November 27, 1910, appellant was a corporation operating a large factory, in which it manufactured motors, tools and implements, and in this connection it operated an emery wheel for the purpose of grinding upon iron; the wheel revolved upon a spindle, which passed through a square hole in the center thereof and was propelled by electric power. Appellee’s duties were to grind wrenches made of iron upon the emery wheel, and he had no other duties. It was appellant’s duty to keep the emery wheel in condition for use for appellee, which it failed to do, in that the spindle became worn, where it passed through the wheel, giving the wheel a zigzag motion, rendering it dangerous to operate; that when it became worn appellee notified appellant of the danger and requested appellant to replace the old spindle by a
In' view of the fact that the issue the jury was called upon to try was based upon an alleged promise to repair the defect in the machine, the instruction brought into the case an element beyond the issues, and from a careful examination of the entire record we are not satisfied that appellant was not harmed by the giving of this instruction. The other errors presented are not likely to occur on a retrial of the cause and we will refrain from considering them. Judgment reversed with instructions to the lower court to grant a new trial.
Note. — Reported in 109 N. E. 787. See, also, under (1) 3 C. J. 1366; (2) 38 Cyc 1929; (3) 26 Cyc 1494; (4) 26 Cyc 1196; (6) 3 Cyc 386.