190 Ind. 198 | Ind. | 1920
— This was an action by the appellee to ' recover for injuries sustained when he fell while walking a thirty-foot plank with a cross-tie on his shoulder and the tie fell upon and broke his leg.
Appellant complains that the trial court erred in overruling its demurrer to the amended complaint, which alleged in substance the following (among other) facts: That the defendant is, and for twenty years has been, a corporation organized and existing under the laws of the State of Missouri, and is . now, and for twenty years has been, engaged in the manufacture, buying and sell
There was some evidence tending to show that the appellee was employed and put to' work by appellant’s local agent; that twenty men were employed at that time, unloading appellant’s cross-ties from the barge into five cars that stood on a track alongside the barge;
Under this evidence it would have been competent for the jury to have found facts from which it must follow, as matter of law, that appellee’s injury was wholly due to risks which he had assumed under his employment, and not at all to any negligence of the appellant or of anybody for whose acts and omissions appellant could be held liable, while at the same time finding that such injury was due to a movement of the plank that drew it and the chock apart, so as to permit the plank to tip where the end lay in the car door, caused either by the springing of the plank under the weight of the men carrying cross-ties, or by the motion of the boat under stress of the current, the winds, and the waves from passing boats, when it was tied up as securely as was possible. Or the jury might have found from such evidence that the quick springing of the plank as appellee ran across it with a heavy tie on his shoulder made such work dangerous, and that the injury resulted directly from that cause, without fault of appellant.
The trial in the circuit court was completed, and the jury was instructed on March 18, 1915, and after the case was appealed the appellee filed his brief on October 20,- 1915. Neither this court nor the Appellate Court had then given a construction to the provisions of the Employers’ Liability Act, Acts 1911 p. 145, supra, in relation to how far the doctrine of assumption of risk was still in force. And in appellee’s brief, under No. 6 of his “points and authorities,” he declared that: “The court properly omitted the element of assumed risk from all of its instructions. Assumed risk of hidden dangers and latent defects did not exist at common law. Assumed risk of dangers or hazards inherent or apparent is abolished,by statute.” And it is a fair presumption that he took a similar attitude in the trial and argument of this case, and that appellant was prejudiced by the refusal of the said instructions unless the record affirmatively shows that such refusal was harmless. Having refused the foregoing requested instructions, the trial court did not give any instructions directly mentioning “assumed risks” or “assumption of risk,” nor any which declared in general terms that an injury to an employe might be caused by dangers incident to the' employment for which the master would not be liable. But it did instruct the jury (court’s No. 11) that if plaintiff’s injury was an accident, or was caused by a misstep, stumble, or some act of the plaintiff, and was not caused by the negligence of the defendant, or (court’s No. 12) was caused solely ,by the chock that was under the end of the plank slip
That the appellant (defendant) oh proper request was entitled to instructions on the subject of assumed risk, does not admit of doubt.
Instructions Nos. 7 and 10, given by the court upon its motion, read as follows:
“No. 7. The burden of proof is upon the plaintiff to show negligence on the part of the defendant. The burden of proof is upon the defendant to show contributory negligence on the part of the plaintiff.
“No. 10. Before the jury should find that the plaintiff was guilty of contributory negligence the burden is upon the defendant to prove by a fair preponderance of the evidence that the plaintiff was guilty of con*212 tributory negligence and that such negligence proximately contributed to his injuries.”
If the appellant wished more complete instructions to be given, he should have tendered them, with a proper request.
There was evidence from which the jury might have found that appellee was fifty years old, and was, and for twenty years had been, a tie carrier, earning $60 per month; that his leg was broken, by reason of which he was in the hospital six weeks with a weight on his leg, and_suffered much pain, so that he slept only on one' or two days; that after his injury he could not carry ties, but was so crippled that up to the time of the trial, seventeen months after the injury, he was not able to work; that the injury made him unable to lift weights, and unable to do much walking without pain, and that his leg would never cease to be tender and painful; that his doctor bill was $195 and his hospital, bill was $45.50. No reason is shown for believing that the jury was controlled by passion, prejudice, or partiality in returning its verdict, and this court will not disturb the verdict
The judgment is affirmed.