26 Ind. App. 543 | Ind. Ct. App. | 1901
This was an action for damages on account of an injury received by appellee while in the employ of appellant. The complaint is in three paragraphs. There was a trial by jury and a verdict in favor of appellee for $2,500. With the general verdict, the jury returned answers to- interrogatories submitted by both parties.
•The assignment of errors challenges the sufficiency of each paragraph of complaint; the irnling of the lower court in overruling appellant’s motion for judgment upon the facts found by the answers to the interrogatories returned with the general verdict; the ruling of the lower court in overruling appellant’s motion for a venire de novo, and the irnling of the lower court in overruling appellant’s motion for a new trial.
The material averments of each paragraph of the complaint are the same in effect. It appears from the complaint that the appellant is engaged in the business of quarrying stone and manufactuxúng lime, and that appellee was a servant of appellant at the time he received the injuries complained of. That appellee’s employment was general, that he assisted in getting out the stone and in filling the cars and boxes with stone, which were lifted in the cars or boxes to the top of the kilns and placed upon a platform and track which ran along and over the tops of the kilns and in this manner was dumped or unloaded in the kilns. Appellee also assisted in filling the kilns and in drawing the lime from them. After the car was filled with stone it was hoisted by a derrick to the top of the kilns and placed upon the iron track and was then pushed along by hand to the mouth of the kiln which was being filled and there dumped or unloaded. Appellee was engaged in the work of filling one of the kilns when he received his injury, and was doing that particular part of the work which consisted
The rule that the master must provide a reasonably safe working place and reasonably safe appliances for the servant is too well settled to need the citation of authorities to- sustain it. The complaint does not by special averments show that the risk was one assumed by the servant. In fact the averments of the complaint show that the risk was not one assumed by the servant. Want of knowledge of the defects, which were of such a character as not to be open and obvious or equally as open and obvious to the servant as to the master, is shown in the servant, and knowledge of such defects is shown in the master.
It is next insisted by counsel that the court erred in refusing to instruct the jury to- return a verdict in favor- of appellant. It would undoubtedly have been error for the trial court-so to instruct the jury. It is not’the province of this court to decide whether or not the verdict of the jury was right under the evidence presented in this case. There was evidence submitted to- the jury tending to support appellee’s cause of action, and the case was properly submitted to the jury upon the evidence.
The next question presented by counsel for appellant arises from tire action of the trial court in refusing to submit- to the jury the following interrogatories and each of them, to be answered and returned -with their general verdict. The question is properly saved by bill of exceptions, and the refusal of the court to submit the interrogatories is assigned as a reason for a new trial. The questions refused were as follows: “(1) If you find for plaintiff state specifically under which paragraph of complaint you find. (2) If you find for plaintiff under more than one paragraph of the complaint state specifically how much you find under each paragraph. (3) What do you find to- have been the immediate and proximate cause of the accident ?”
The three interrogatories are properly discussed together. Neither of them calls for any fact presented by the issues. If the three paragraphs of complaint in the case at bar were different in the acts of negligence alleged, we think proper interrogatories could have been so framed as to have called from the jury the facts as to what particular defect, under the evidence submitted, resulted in appellee’s injury. Such answers would have been sufficient to determine the question as to which paragraph of complaint the jury based their verdict on, and would at the same time have answered the question as to what the jury considered the proximate cause of appellee’s injury. A particular fact, as mentioned in the statute, does not mean a conclusion drawn from all the evidence submitted to the jury, and means something less than the whole issue. Blacker v. Slown, 114 Ind. 322; McCullough v. Martin, 12 Ind. App. 165. But the jury may be compelled to find the particular facts covering .the whole issue. §555a Burns Supp. 1891.
Counsel for appellant complain of the action of the court in refusing to direct the jury to return to their room and answer more directly certain questions submitted by appellant. A motion for this purpose was made at the proper time, and it would have been reversible error for the court . to have refused to sustain the motion, if the questions had been so framed that a more direct -answer than that returned by the jury could have been demanded. One of the answers so strongly objected to was in answer to the following interrogatory: “Was the kiln so open at the mouth that one could have seen the fact at a casual glance ? A. Owing to where you were standing.” We submit that an
Appellant next contends that the court erred in overruling its motion for judgment upon the facts specially found by way of answers to interrogatories submitted to the jury and returned with the general verdict. We are unable to find any fact, specially found, which is in conflict with any one of the material averments of appellee’s complaint.
The evidence being conflicting, we will not weigh it. We find no reversible error. Judgment affirmed.