24 Ind. App. 673 | Ind. Ct. App. | 1900
Appellee sued for damages for personal injuries. Trial resulted in a verdict in appellee’s favor. Motion for a new trial overruled. Judgment on
From the complaint it appears, among other averments, that appellee was employed by appellant as a plow polisher, and in his work used a machine consisting of a rapidly revolving wheel dusted with emery and supported by a shaft fastened and revolving in boxes supported by bolts and screws which permitted the revolving of a shaft between such boxes; over the wheel to protect the operator was a guard consisting of a flat piece of iron which was attached to the box by bolts; that the machine was out of repair in that the boxes were loose and permitted a jolting motion of the polisher when in use; that while appellee was polishing plows on this machine this jolting motion caused the guard to break off and be thrown against appellee’s hand.
It is argued by appellee’s counsel that it affirmatively appears from the bill of exceptions that it does not contain all the evidence, and that therefore the evidence is not in the record. All the questions argued in appellant’s brief depend upon the evidence, and if the evidence is not in the record no questions are presented for decision.
In determining the questions whether appellant was negligent and whether appellee was guiltless of contributory fault it was necessary to describe the particular machine, the manner of its construction and use, and the particular manner in which appellee was using it when injured. A large number of witnesses testified upon these particular questions, and a model polishing machine and model plows, which seem to have been exhibited to the jury, were used and referred to by them constantly in illustrating their testimony. The words “indicating” and “pointing to model” are used almost constantly by the witnesses, and were understood by the jury as a part of the answers to questions. In some
As the evidence is not in the record we must presume that the instructions requested were refused because they were not applicable to the case made by the evidence. Jenkins v. Wilson, 140 Ind. 544; Holland v. State, 131 Ind. 568; Fifth Avenue, etc., Bank v. Cooper, 19 Ind. App. 13; Shafer v. Stinson, 76 Ind. 374; Blizzard v. Bross, 56 Ind. 74.
The instructions given by the court, in the absence of the evidence, can not be regarded as erroneous if they can be considered correct upon any state of facts admissible under the issues. Rapp v. Kester, 125 Ind. 79; Hilker v. Kelley, 130 Ind. 356, 15 L. R. A. 622; Fifth Avenue, etc., Bank v. Cooper, supra; Joseph v. Mather, 110 Ind. 114; McCormick, etc., Co. v. Smith, 21 Ind. App. 617; Northwestern, etc., Ins. Co. v. Heimann, 93 Ind. 24; Byram v. Galbraith, 75 Ind. 134; Coal Bluff, etc., Co. v. Watts, 6 Ind. App. 347; Wright v. City of Crawfordsville, 142 Ind. 636.
We have examined the instructions given by the court of which appellant complains, and find none of them substantially wrong in the abstract, nor are they in themselves
Judgment affirmed.