46 Ind. App. 531 | Ind. Ct. App. | 1910
On November 21, 1906, appellant was engaged in manufacturing brick at the city of South Bend, Indiana, and a part of its plant consisted of brick kilns, covered by sheds open on all sides. On said day, while appellee was in appellant’s employ, and while engaged in casing one of said kilns of brick, as he was employed to do, the shed under which he was working fell and injured him. To recover damages for said injuries, appellee brought this action, alleging two separate acts of negligence: (1)' That the appellant negligently and carelessly constructed said sheds, and by reason of said negligent construction they were defective, weak and insubstantial; (2) that appellant negligently and carelessly failed to maintain and keep said sheds in proper condition and repair, and allowed them to become weak, defective and insecure.
Appellant answered by a general denial, and by an affirmative paragraph averring, in substance, that said sheds, were .constructed by careful, skilful and reliable persons, according to plans prepared by careful and skilful architects ; that said sheds were strong and not out of repair on the day of the alleged injury; that they fell solely by reason
Trial by a jury, and a verdict rendered in favor of appellee, and over appellant’s motion for a new trial judgment, on the verdict was rendered against appellant. The only error relied on for a reversal of that judgment is the overruling of appellant’s motion for a new trial. At the request of appellee, the court gave to the jury certain instructions, eight of which are claimed to be erroneous, and are-assigned as reasons for a new trial.
The complaint proceeds upon the theory that the sheds fell because of appellant’s negligence in constructing or in maintaining them, and testimony was introduced tending to support both charges of negligence. There was also evidence introduced showing that on the day of the accident the wind was unusually strong, and that some smaller buildings in the city of South Bend were blown over. The instruction was not subject to the objections urged against it.
' The objections urged to instructions seven, eight and nine are not of sufficient merit to require extended notice.
This court in the case of Pittsburgh, etc., R. Co. v. Cozatt
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.