34 Ind. App. 154 | Ind. Ct. App. | 1904
Tbis is tbe second appeal. Tbe first one resulted in tbe reversal of tbe judgment obtained by appellee. Southern Ind. R. Co. v. Moore (1902), 29 Ind. App. 52. Upon a second trial appellee bad a verdict for $825, and judgment for $417, wbicb reduction in amount is
The objection to the complaint is that it appears therefrom that the negligence relied upon is the negligence of - a fellow servant. When the case was here before, one assignment of error was that the court erred in overruling the demurrer to the complaint. The point was waived by failure to include it in the statement of errors relied upon or to discuss it. We do not, therefore, need ft> examine the question at this time, hut the averments are that the negligence was that of the appellant’s superintendent, “having full charge and control of the defendant’s work in and about said quarry.”
The .sixth instruction began as follows: “It is a rule of law that the servant can not recover for an injury resulting from a danger open and known to both the master and servant alike, or when the opportunity to know of the danger is equal to both master and servant.” It is then stated that the rule is applicable to injuries received by reason of dangers which could only b© discovered by a close inspection, etc.
The seventh contains no reference to actual knowledge.
The witness Smith was asked the following question: “I will ask you if you are acquainted with the reasonable value of board and clothing of a laboring man twenty to twenty-one years of age, working in a quarry like Rock Ledge quarry, in that neighborhood, about two years ago', in the neighborhood of Williams — what was it reasonably worth ?” To which he answered, “Yes.” lie was then asked, “How, then, what was the value of that kind of board and clothing in the neighborhood at that time?” Appellant offered to prove the value of board to be fifty cents a day, and clothing $40 per year. Witness’ knowledge of the facts inquired of is not questioned. The answer would have tended to elicit pertinent evidence upon a material question. The court sustained an objection to each of the foregoing questions. This was error. Pennsylvania Co. v. Lilly, supra; Louisville, etc., R. Co. v. Rush (1891), 127 Ind. 545; Louisville, etc., R. Co. v. Wright, supra; Jackson v. Pittsburgh, etc., R. Co. (1895), 140 Ind. 241, 49 Am. St. 192; Black, Law & Pr. in Accident Cases, §267.
Appellee’s right to her judgment depends upon the proposition that appellant directed decedent to work in an unsafe place, omitting the duty of reasonable inspection to make it safe. The law is perfectly well settled that if the accident was the result of peril incident to' the business in which the servant was employed, or if it was caused by the negligence of a fellow servant, there can be no< recovery.
Counsel for appellant discuss other questions which ultimately will largely depend for their solution upon the evidence. As the judgment must be reversed for the reasons given, it is not necessary to consider them.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.