150 Ind. 656 | Ind. | 1898
The appellee recovered judgment against the appellant in the sum of f4,750.00, for personal injuries alleged to have been caused by the wheels of a heavy piece of machinery called a “traveler,” said to have been used by. appellant in a negligent manner in connection' with the business of its stone quarry.
It is contended by counsel for appellee that there is no question before us, for the reason that the record does not show that any appeal was prayed or granted at the close of the trial. At the succeeding term of court, there was an attempt to correct this apparent omission, by the entry of a mine pro tune order. It must be said that this attempt is not shown to have been a very satisfactory one; but the order made, though crude, was perhaps sufficient for the purpose intended. Moreover, appellee has not caused the motion for this nunc pro tune entry, nor the evidence upon which the court acted, to be brought up by bill of exceptions or otherwise, and we must presume that the evidence adduced was such as to justify the action of the court. Ellis v. Keller, 82 Ind. 524.
The first error assigned is, that the court overruled a demurrer to the complaint. On a former trial of the case, judgment was given appellee in the sum of $3,000.00. This judgment was reversed in the Appellate Court, Salem-Bedford Stone Co. v. O’Brien, 12 Ind. App. 217. On that appeal the complaint was held good. The complaint now before us is not substantially different from that on the former appeal, and we are of opinion that there was no error in overruling the demurrer to it.
The verdict was a special one, by answers to in-, terrogatories, under the act of 1895, now repealed. Acts 1895, p. 248. Nearly 220 questions were pre
As to mere formal defects complained of, it does not appear that any objection was made to the verdict when it was received. The court should have had an opportunity to send the jury back to correct any such' errors in the verdict. Chicago, etc., R. R. Co. v. Ostrander, 116 Ind. 259.
The third and fourth assignments of error, relating to the action of the court in entering judgment upon the verdict, may be considered together. From the answers returned by the jury to the interrogatories submitted to them these facts appear: On July 28, 1892, and previous thereto, the appellant was engaged in the business of moving heavy stone and loading the same on cars by means of travelers and other machinery, under direction of one Pearson, as superintendent, in full charge of the' business, and with power to employ and discharge men. On July 4, 1892, appellee was employed by Pearson to work as a common laborer, and “scabble” stone, and continued in appellant’s employment until his injury on July 28,1892. It is found that appellee had no skilled knowledge of travelers, tramways, or other machinery, or the mechanism relating thereto, used in and around the place where he was employed, and that appellant knew that
No question is made as to the negligence of the appellant; and that the company was negligent, as alleged in the complaint, is in no way controverted. For some reason not shown, the traveler was not oh this occasion made secure either by chocks, or by rope and weight, as had been done theretofore, and as was necessary to keep it from being moved by the wind, as well known to the appellant. Appellee knew nothing of this neglect, and had no reason to suspect it. He could not see under the wheels on his precarioxis way down, and knowing that they had been chocked on other days, h'ad a right to believe that they were also secured on this occasion. The shaft was used as a step on his pathway and seemed as safe a place to step as any other on his way down. Suddenly, and without any warning, while his foot was yet upon the shaft, the wind started the traveler and he was injured. We can discover no negligence on the part of