34 Ind. App. 601 | Ind. Ct. App. | 1905
Action by appellee against appellants to recover damages resulting from their alleged negligence;. The
By their first specification of the assignment of •error, appellants aver “that the complaint does not state facts sufficient to constitute a cause of action;” by the second specification they predicate error in the overruling of their motion for judgment on their answers to interrogatories, and by the third specification they aver that the court erred in overruling their motion for a new trial.
In the first paragraph of complaint it is averred that appellee was a minor, being twenty years of age; that appellants were partners in the operation of a sawmill, which sawmill was equipped, among other things, with a ripsaw about twelve inches in diameter; that the operation of the saw required two men, one to feed it and the other to receive the planks after they had been pushed through the saw; that appellee was engaged in appellants’ service in feeding said saw, and that appellants were negligent in that they “wholly failed, neglected and refused carefully and securely to in-case or guard said ripsaw, so as to protect said employes while engaged in work near, around and about said saw, and by negligently failing to put a proper hood or covering over the top of said saw, and by failing to put a spike, or what is commonly called in sawmills a ‘spreader,’ immediately behind said saw, of sufficient height to prevent said saw from catching lumber, planks or boards, when the same would be thrown upon said saw, and hurling the same with great
The verdict shows that it rests upon the first, second and third paragraphs of complaint. This eliminates from the record, so far as the appeal is concerned, the fourth paragraph ; and, in passing upon the sufficiency of the complaint, as raised by the assignment of errors, if we find that one paragraph is good, even though the second and third are bad, the assignment is unavailing. We will therefore consider the sufficiency of the first paragraph, and, if we find it good, our inquiry, in this regard, need not be pursued further.
There is a sharp controversy between counsel as to whether the complaint proceeds upon the theory of a common-law liability, or upon the theory that appellee’s injuries resulted from a failure of appellants to perform a duty imposed upon them by statute, requiring them properly to guard the saw with which appellee was working. If, as counsel for appellants insist, each paragraph proceeds upon the theory,of a common law liability, then neither of them is sufficient, because of a failure to aver that appellee did not know the dangerous condition of the saw while he was operating it. Taking the allegations of each paragraph as a whole, we have reached the conclusion that appellee bottoms his right to recover .for the injuries he sustained upon the failure of appellants to perform the duty laid upon them by section nine of what is commonly known as the factory act of 1899 (Acts 1899, p. 231, §70871 Burns 1901).
This brings us to the consideration of the questions presented in argument, which arose under appellants’ motion for a new trial. Counsel for appellants have confined their argument to three propositions: (1) That the verdict was .contrary to law and not sustained by sufficient evidence.; (2) the error of the court in refusing to discharge the jury on account of misconduct of one of appellee’s counsel in
Counsel for appellants urge three objections to this instruction: (a) That by it the court advised the jury that each of the four paragraphs of complaint was substantially the same in its averments as the other three; (b) that it erroneously stated to the jury that each paragraph contained the allegation that the “defendahts knew, and that the plaintiff did not know, that it was dangerous to operate the saw as thus equipped and guarded; that Barney Cooper was incompetent and unable tO' act as off-bearer and assist, in the operation of said saw, and that defendants knew, and plaintiff did not know, that said Cooper was unfit and incompetent as aforesaid;” and (c) in advising the jury that, if they found that the averments of one or more of the paragraphs of the complaint had been established by a preponderance of the evidence, in that event it would be their duty to find for the appellee.
It requires but a casual glance at the four paragraphs of complaint to discover that they are radically different in their material averments, and proceed upon different theories. The first paragraph proceeds upon the theory that the saw was wholly unguarded by a spike or spreader or hood of any kind, and that by reason thereof a plank or board, which Cooper was passing back to appellee to be re-sawed, came in contact with the saw, and was hurled with much force against appellee, causing his injury, etc. It was upon this theory of the unguarded condition of'the saw that we have held the first paragraph good. In this paragraph no attempt is made to charge appellants with knowledge that the saw was dangerous, or a denial that appellee did not know that it was dangerous. Neither is it attempted to aver that appellants knew, and appellee did hot know, that Barney Cooper was incompetent and unable to act as off-bearer.
The second paragraph proceeds upon .the theory that the ripsaw was guarded, but that it was improperly guarded, in
The third paragraph is more like the second than any of the others, but differs from it in that it charges that appellee had no knowledge or experience in handling machinery, that .appellants had not warned him of the danger of the work in which he was engaged; that he believed, and relied upon the belief, that appellants would not needlessly or carelessly expose him to unnecessary danger by requiring him to- work with machinery which was not properly and securely guarded; and that he believed, and relied upon the belief, that the spreader or spike was properly set and adjusted so as to prevent the saw from catching boards, etc. The specific charge of negligence in this paragraph is appellants’ failure properly to protect appellee from danger by failing to use a spreader or spike of sufficient height, and failing to adjust it in close proximity to the saw,, and by failing to use a hood or cover above the saw. In this paragraph there is no charge of the knowledge of danger on the part of appel
The theory of the fourth paragraph is that appellee was ignorant of the fact that the saw was dangerous; that appellants had not warned him of such danger, nor instructed him in relation thereto; thát appellants were negligent in hiring Cooper as helper; that Cooper was too young and inexperienced to perform the work assigned to him; that the work assigned to Cooper required the physical strength and endurance of a man of mature strength and years; that, by reason of the arduous work devolving upon him, said Cooper would become physically exhausted and unable to perform his work; that appellants well knew these facts when they employed said Cooper and that appellee was ignorant thereof, and did not receive any knowledge of the same.
The first instruction, read in the light of this resume of the several paragraphs of complaint — and applied to them as a whole, is erroneous. One of the highest duties of a trial court is h> state correctly to the jury the issues tendered by the pleadings. The issues as stated and defined by the court are for the guidance of the jury, and to them become the law of the case. The jury are bound by such instructions, for they must take the law as given by the court. By this instruction the court told the jury that all four of the paragraphs were substantially the same, and that they all charged that appellants knew, and appellee did not know, that it was dangerous to operate the saw as it was guarded and -equipped; that appellants knew, and appellee did not know, that Barney Cooper was incompetent and unfit to discharge his duties as helper; and, notwithstanding the radical difference in the several paragraphs, the court, in the same instruction, told the jury that if they found that the averments of either paragraph had been established by a preponderance of the evidence, their verdict should be for
The weight of the authorities establish the rule that the instructions must be applicable and limited to the issues raised by the pleadings, and that it is error to give an instruction which does not conform to this rule. The instruction as given was based upon a misconception of the issuable facts tendered by the several paragraphs of complaint, and submitted the case to the jury upon an erroneous theory. This must be held to be reversible error. Union Cent. Life Ins. Co. v. Huyck (1892), 5 Ind. App. 474; Howe Machine Co. v. Reber (1879), 66 Ind. 498; Jeffersonville, etc., R. Co. v. Lyon (1877), 55 Ind. 477; Lindley v. Sullivan (1893), 133 Ind. 588; 11 Ency. Pl. and Pr., pp. 161, 162, and authorities there cited.
Other instructions are not beyond criticism, but the errors with which they are burdened are not likely to occur in a subsequent trial of the case.
Counsel for appellee have not submitted any argument in support of the court’s instructions. While they do not, in terms, admit that any of them are erroneous, they seek to avoid their apparent error by invoking the shield of the statute which forbids the reversal of a judgment where it appears to the appellate tribunal that the cause has been fairly tried and determined in the court below; also, that erroneous instructions will not be cause for reversal when .the verdict is right upon the evidence; also, that the burden is upon the party asserting error to show injury; and, also, that if all the instructions considered together state the law correctly, as applied to- the issues and evidence, there is no reversible error, even though a single instruction, when standing alone, would be inaccurate and erroneous.
We can not uphold this judgment upon the proposition that erroneous instructions are not cause for reversal, when the verdict is right upon the evidence, for the reason that we can not say, in view of the evidence, and the law as given by the court, upon which and by which the jury determined the rights of the parties, that the verdict is right upon the evidence. Neither can we uphold the judgment upon the last proposition relied upon by appellee' — that if the instructions, considered together, state the law correctly as applied to the issues and evidence, a single erroneous instruction is not sufficient to warrant a reversal — for, as we have seen, the instructions considered as a whole do not correctly state the law. Again, where an erroneous instruction is given, it is subject to the qualification that the court in the particular case on appeal must be satisfied that the jury was not misled by the error. Citizens St. R. Co. v. Jolly (1903), 161 Ind. 80.
Having come to the conclusion that the judgment must be reversed by reason of the erroneous instructions given, we do not deem it necessary to decide the other questions presented. They may not arise in a subsequent trial, and should we decide them in this appeal, when it is unnecessary to do so, it might foreclose some rights of the parties.