62 Ind. App. 196 | Ind. Ct. App. | 1915
This is a suit by appellee against appellant for damages for personal injuries. From a judgment in appellee’s favor for $3,600, appellant appeals. The errors relied on for reversal allege that the court erred: (1) In overruling the demurrer to appellee’s complaint; (2) in overruling appellant’s motion to require appellee before the commencement of the trial to elect whether he would try the case on the theory of a suit under the statute or as a common-law action for damages; (3) in overruling appellant’s motion for judgment on the answers of the jury to the interrogatories notwithstanding the general verdict; (4) in overruling appellant’s motion for a new trial.
Omitting formal averments about which there is no contention, the complaint, in substance, avers that on January 4,1912, and prior thereto, appellant
Appellant also contends that the complaint is insufficient to state a cause of action under the statute because it fails to show in what respect, if at all, the statute was violated. The statute supra, §8020a et seq. Burns 1914 provides: “That any person, firm or corporation while engaged in business, trade
In Vandalia Coal Co. v. Stillwell, supra, 270, our supreme court says: “Section 1 makes its provisions applicable only to employers of five or more persons, and abrogates the fellow servant rule, but restricts liability to negligence * * * in whole or in part producing the injury, or death.” In the recent case of Chicago, etc., R. Co. v. Mitchell (1916), 184 Ind. 588, the Supreme Court in an opinion by Morris, C. J. in speaking of the same act says: “The effect of this section is to abrogate the assumed risk rule in so far as it applies to the particular risk of injury by a fellow servant.”
It is next insisted that the court erred in overruling appellant’s motion for judgment on the answers of the jury to the interrogatories notwithstanding the general verdict. The answers in substance show that appellee was a mature man, possessed of all his faculties and experienced in the work he was doing when injured; that he knew how the hammer was operated; that he could have handled the metal with tongs provided for his use and avoided the injury; that he could have safely placed the metal on the anvil by using both hands or by using the tongs, and there was no reason why he should not have done so on the occasion of his injury; that he would not have been injured if he had not placed his hand on top of the iron collar, and it was not proper for him to so place his hand in adjusting the collar on the anvil; that he picked up the piece of metal with his left hand and placed the same on the anvil with his fingers over the top of the collar; that it was sufficiently light where he was working;
Complaint is made of the giving of instructions Nos. 15 and 16 by the court. We have considered all the instructions and find no reversible error based on the instructions considered from the standpoint of a common-law action for damages. Since we have held the complaint good under the statute it is apparent that appellant has no cause to complain of the instructions given, many of which were tendered by it. The instructions given, when consideredasawhole, were,atleast,asfavorableto appellant as the law warrants, and no reversible error is shown by the giving of the instructions of which complaint is made. There is evidence tending to support every material averment of the complaint.
No prejudicial error against appellant has been shown. Every right of appellant in making its defense was given full recognition by the trial court and the record discloses no intervening error that warrants a reversal. Judgment affirmed.
Note. — Reported in 110 N. E. 684. Statutes abrogating fellow servant doctrine, constitutionality, 10 Ann. Cas. 1113; 19 Ann. Cas. 196; notes, 12 L. R. A. (N. S.) 1040; 47 L. R. A. QSf. S.) 84. Servant remaining at work after master’s promise to remove incompetent fellow servant, as assumption of risk or contributory negligence, 11 Ann. Cas. 625. See, also, under (1) 26 Cyc 1079, 1180; (2) 26 Cyc 1360; (3) 26 Cyc 1293; (4) 26 Cyc 1209; (5) 31 Cyc 651; (6) 31 Cyc 653; (7) 26 Cye 1513.