63 Ind. App. 567 | Ind. Ct. App. | 1917
This is an appeal from a judgment in appellee’s favor, in an action brought by him to recover for personal injuries alleged to have been caused by appellant’s, negligence. The issues of fact were tendered by a complaint in one paragraph and a general denial. A demurrer to the complaint for want of facts, a motion for judgment on the answers to interrogatories and a motion for new trial, filed by appellant, were each overruled and exceptions properly saved. Each of said rulings is assigned as error in this court and relied on for reversal.
The grounds upon which the sufficiency of the complaint is
The averments of the complaint affecting said questions are in substance as follows: Appellant owns and operates a saw mill in Huntingburg, Dubois county, Indiana, and is engaged in the purchase and sale of timber, logs and lumber, and in such mill saws and cuts lumber of all kinds; that in the operation of his said mill and business, he employs more than five persons, to wit, fifty men; that logs purchased and delivered to appellant’s mill are brought in on wagons and trains and are unloaded in said mill yard by appellant’s employes in the following manner: They are rolled off of the wagons and freight cars on a skidway. A chain is then attached to said logs and a team, hitched to the other end of the chain, pulls and rolls said logs to the place and position desired, piling them one upon another, six or seven logs high. On October 9, 1912, appellee had been employed by appellant for about one year and, on said day, was directed by appellant’s foreman and vice principal, Harry Maley, to go into the yard and help one James Collins pile logs that were then being unloaded from. cars upon said skidway; and appellee “was directed by said foreman to put the chains around said logs, and when said chains were around said logs the said * * * Collins was directed to
No material or essential fact is found by the answers to interrogatories that is in irreconcilable conflict with the
In support of his contention that error resulted from the ruling on his motion for new trial, it is insisted by appellant that there is no evidence that Collins was directed by anybody other than appellee to start the team at the time he, appellee, was injured, and that the team was in fact started pursuant to appellee’s signal and direction.' There is evidence which might have justified the trial court or jury in reaching such a conclusion, but the appellee himself testified, in substance, that on the morning of his injury he had been ordered and directed by appellant’s foreman, Mr. Maley, to help Collins “double-deck” logs; that Maley instructed him in said matter and directed him to attach the chain to the log to be moved, etc.; that they had moved about two dozen logs before they attempted to move the one by which appellee was injured; that in moving the other logs, he, appellee, attached the chain to the log and went out from between it and the pile on which it was to be placed, where he could be seen by Collins, and would then give him the signal or tell him to go ahead; that this course was pursued at the direction of Collins;'that while attaching the chain to the log which injured him, it began to move just as he was starting to get up after attaching the chain before any signal or direction had been given by him to Collins; that while he was still in front' of the log and before he could escape and get from between it and the pile on which it was to be placed, he called to Collins to stop the team and tried to jump and climb over the log, but was caught, etc.; that he gave Collins no signal or directions to move the log and that Collins gave him no knowledge or warning that he was going to move it.
Finding no available error in the record, the judgment below is affirmed.
Note.—Reported in 114 N. E. 885. Employers’ liability act: “injury arising out of and in course of employment,” what is, Ann. Cas. 1914D 1284; validity of, as exempting certain employments, Ann. Cas. 1914D 404.