21 Ind. App. 338 | Ind. Ct. App. | 1899
Appellant sued appellee for damages for personal injuries. Upon a special verdict returned by tlie jury the trial court rendered judgment in appellee’s favor. This action of the court presents the only question under the errors assigned.
The special verdict as to the manner in which the accident occurred shows: That on the 10th day of April, 1896, appellee, a corporation, was erecting a new building. That W. H. Miller was in charge of the erection of the building as foreman. That on that date, appellant, while in the employ of appellee as a carpenter engaged in putting on ceiling, was injured by the fall of a scaffold upon which he was at work. The scaffold was inside the building about ten feet from the ground, and had been erected about two days before by the direction of said Miller. Appellant assisted in the erection of the scaffold, which
From the special verdict we can but conclude that the accident resulted from the negligence of co-employes, and also that appellant himself was not free
No question is made, nor could it be made under the facts, that the scaffold was not safe when first erected, because appellant assisted in its construction ánd, if it was unsafe, he knew it. It became unsafe through the acts of two of appellant’s fellow work
It is briefly argued by appellant’s counsel that the special verdict entitles appellant to judgment under the co-employes’ liability act. Section 7083, et seq., Burns’ R. S. 1894. But under that act the employe so injured must have been in the exercise of due care and diligence. As we have concluded that the verdict fails to show the exercise of such care, there could be no recovery under that act, even if the case at bar is of the class that would fall within the provisions of that act, which question we need not and do not decide. Judgment affirmed.