52 Ind. App. 379 | Ind. Ct. App. | 1913
Suit by appellee against appellant for damages on account of personal injuries alleged to have been caused by the negligence of appellant in failing to guard certain cogwheels, and failing properly to instruct appellee as to the use and operation of the machine at which he was put to work.
The averments of the complaint are substantially, that appellee, on August 12, 1908, the date of his injury, was an infant fourteen years of age, without mechanical training, and without experience in the use and operation of machinery ; that he was employed by appellant about June 20, 1908, for the purpose of picking up cans, carrying water and watching can chutes; that he performed such duties until about the-day of-, 1908, at which time the foreman, under whose orders he worked, directed and ordered him to operate a machine commonly known as a “lock seamer”, without properly instructing him as to the use and operation of said machine; that the machine was operated by power conveyed through a system of shafting and belts; that it consisted of a large, iron frame, in front of which, at the heighth of about four feet from the floor, was a wooden apron or table about eighteen inches wide projecting out in front of said machine, on which the persons operating said machine placed pieces of tin, which were by said machine automatically trimmed, moulded and soldered into bodies of cans; that the tin chips or trimmings from the pieces of tin fed into the machine fell into cans or receptacles underneath the machine, below and beyond the table or apron, which cans or receptacles rested on a framework of the machine about two feet from the floor; that directly
The jury returned a general verdict for appellee, and with the general verdict returned answers to numerous interrogatories. Appellant moved the court for judgment on the answers to interrogatories notwithstanding the general verdict. The motion was overruled, and this ruling is the second error assigned and relied on for reversal.
In McCoy v. Kokomo R., etc., Co., supra, the court said: “In passing upon a motion for judgment notwithstanding the verdict, it should be borne in mind that the verdict necessarily covers the whole issue, and that it solves every material fact against the party against whom it is rendered. To enable the latter successfully to interpose the special findings of the jury upon particular questions of fact, as a reason for judgment in his favor, he must, at least, have special findings that stand in such clear antagonism to the general verdict that the two cannot coexist. ’ ’
Appellant further assigns as error and relies for reversal on the overruling of its motion for a new trial. Under this specification, many questions are presented, but in view of the conclusion we have reached, it will be necessary to consider only the seventeenth instruction given by the court, which it as follows: “If, under the evidence and under the
It will be noted that a part of this instruction requires the jury to determine the amount of recovery “from all the facts and circumstances in the case as shown by the evidence.” The giving of such an instruction has been often condemned, and held to be reversible error. City of Delphi v. Lowery (1881), 74 Ind. 520, 527, 39 Am. Rep. 98; Monongahela River, etc., Co. v. Hardsaw (1907), 169 Ind. 147, 151, 81 N. E. 492; Broadstreet v. Hall (1904), 32 Ind. App. 122, 128, 69 N. E. 415; Knoefel v. Atkins (1907), 40 Ind. App. 428, 441, 81 N. E. 600; Mesker v. Leonard (1911), 48 Ind. App. 642, 644, 96 N. E. 485. In Pittsburgh, etc., R. Co. v. Reed (1909), 44 Ind. App. 635, 88 N. E 1080, an instruction similar to the one before us was given, and the words “all other facts and circumstances” held to be harmless, for the reason that appellant failed to point out in its brief any fact or circumstance shown by the evidence that might be considered as improperly influencing the jury. This case did not change the general rule that where an erroneous instruction is given, in order to prevent a reversal it must appear from the record on appeal that the error did not prejudice the complaining
In the case at bar, evidence was offered and received, over the objection of appellant, that appellee was living at home, with a widowed mother, who had six children; that appellee went to work when he was fourteen years of age, and that two of his sisters were working in appellant’s factory. Assuming that this evidence was competent for some purpose, such evidence was not competent in determining the amount of appellee’s damages. The jury cannot determine the amount of the recovery “from all the facts and circumstances in the case, as shown by the evidence, ’ ’ but only from such facts as form proper elements in. fixing the amount of damages.
Vandalia Coal Co. v. Yemm (1911), 175 Ind. 524, 539, 92 N. E. 49, 94 N. E. 881.
Other questions presented by the record are not considered, as they may not arise again. The judgment is reversed, with instructions to the court below to sustain appellant’s motion for a new trial, with leave to appellee to file an amended complaint, if desired.
Note — Reported in 100 N. E. 785. See, also, under (1) 20 Cyc. 1384; (2.) 26 Cyc. 1384; 31 Cyc. 82; (3, 4) 38 Cyc. 1927; (5) 26 Cyc. 1513; (6) 26 Cyc. 1463; (8) 13 Cyc. 234; (9) 13 Cyc. 238. As to master’s duty to guard or enclose dangerous machinery, see note to Brazil Block Coal Co. v. Gibson (Ind.), 98 Am. St. 299. As to plaintiff’s family ties and obligations as a measure of damage, see 85 Am. St. 835. As to the right of an infant to recover damages for loss of services or diminished earning capacity, during minority, from personal injuries, see 6 L. R. A. (N. S.) 552.