178 Ind. 546 | Ind. | 1912
Appellee Price, as administrator, instituted this action against appellant, for damages for personal injuries to appellee’s decedent, which resulted in his death.
The complaint was in five paragraphs, to each of which a demurrer was addressed and overruled, and appellant filed an answer of general denial. The trial resulted in a verdict and judgment for appellee in the sum of $7,500. A motion for a new trial was overruled. Appellant assigns as error, among others, the action of the lower court in overruling its demurrer to each paragraph of complaint.
The second paragraph of complaint contains substantially the same allegations as the first, and the further charge that appellant negligently constructed the legs which supported
The third paragraph contains substantially the same allegations as the first, with the exception that the specific negligence therein charged is that appellant, in the construction of the entry, left a cross-tie resting loosely on top of legs, six inches in diameter, which stood up alongside the edge of the entry; that the cross-tie was in no way fastened to the legs, and that cars running over the track jarred one end of the tie loose, so it fell near the rail.
The fourth paragraph contains substantially the same allegations as the first, except that, in addition to the charge of negligence in the construction and maintenance of the loose cross-tie, it further alleges that the track was constructed and maintained on an uneven and rolling surface, so that cars running at ordinary speed, rocked, ‘ ‘ one end up, and one end down. ” It is alleged that because of the negligent construction and maintenance, the vibration of the running cars caused the displacement of the loose cross-tie. This paragraph fails to charge appellant with knowledge of the defective construction and maintenance.
The fifth paragraph contains the same substantial allegations as the first, except that the negligence charged in this paragraph consists of (1) insufficient lighting of the entry; (2) the alleged fact that the track was constructed and maintained on an uneven surface, so that the cars loaded with coal bounced and rocked, and sometimes caused lumps of coal on top to strike the cross-ties; (3) the loose construction and maintenance of the cross-tie that fell, as alleged in the first paragraph. It is alleged that the cross-tie was displaced because it was struck by a piece of coal on top of a ear, which was bouncing and rocking. This paragraph contains no allegation that appellant knew of the existence of either of the three defects charged.
Each paragraph alleges negligent defects in the original construction of the track, and in the loose placing of the cross-tie, which occurred several months before the accident, and that after the construction the defects had not been remedied. Appellant was legally bound to take notice of such facts, and of the further fact, that vibrating and rocking of ears will result when they run over an uneven track.
In the fifth paragraph there is the added averment that appellant was negligent in failing sufficiently to light the entry. Conceding that this omission was defectively alleged, because o'f the failure to aver appellant’s knowledge thereof, the paragraph is still sufficient, in respect to averments of appellant’s knowledge, to repel a demurrer, because it does allege, by necessary implication, appellant’s notice of the other negligent omissions. Other objections are urged against the fourth and fifth paragraphs, but we think each was sufficient to repel a demurrer.
It may be conceded that if appellant did nothing more than furnish the condition by which the injury was made possible, and the act of the fellow servant immediately caused the injury, and the act was such as the master, in the exercise of reasonable diligence, could not have anticipated, the latter would not be liable; but this would be because the condition furnished by the master was not the proximate cause of the injury. This instruction, however, requires, as a condition precedent to appellant’s liability, that it must have been concurrently guilty of negligence, which was the proximate cause of the injury. The instruction was not erroneous.
This^position is sustained by authority in many' other jurisdictions, but the rule recognized in this State is that evidence of customary methods in general use is admissible, and such evidence should be considered by the jury in determining the question of the particular negligence charged, but such evidence is not conclusive. William Laurie Co. v. McCullough (1910), 174 Ind. 477, 90 N. E. 1014, 92 N. E.
In Chicago, etc., R. Co. v. Moore (1909), 166 Fed. 663, 92 C. C. A. 357, 23 L. R. A. (N. S.) 962, in an opinion delivered by Yan Devanter, circuit judge, it was said: “.The ultimate and controlling test of the exercise of reasonable care is, not what has been the practice of others in like situations, but what a reasonably prudent person would ordinarily have done in such a situation. The law is not so unreasonable as to afford no test where there has been no practice by others with which the conduct in question can be compared; nor does it permit common sense and reason to lose their sway because, through ignorance, inattention, or selfishness, an unreasonable practice has revailed.” The instruction was not erroneous.
The court gave forty-two instructions, some of which contained more than a full page of closely type-written matter. The instructions given fully and fairly informed the jury concerning every element of appellant’s defense warranted by the pleadings and evidence, and we are convinced that appellant was not harmed by the refusal to give any instruction.
Appellant contends that the undisputed evidence shows its freedom from negligence, or, at least, decedent’s guilt of contributory negligence. We have carefully examined the evidence. Without setting out the facts, it is sufficient to sa.y that the verdict, in finding defendant guilty of negligence, and in finding decedent free from contributory negligence, is sufficiently supported by the evidence given.
It does appear from the evidence, as an incident merely, that within a few hours after the accident, an insurance agent was at the place of injury. It might possibly be inferred from the evidence that representatives of some insurance company were present at the trial and assisted in the defense. These facts, however, lent no excuse for the statement of appellee’s counsel. There may be many things in the record that are not proper subjects for argument to the jury. Camphell v. Maher (1886), 105 Ind. 383, 4 N. E. 911; Rudolph v. Landwerlen (1883), 92 Ind. 34; 38 Cyc. 1497.
The statement was wholly improper under any aspect of the evidence, and justified a severe reprimand by the trial court. No doubt in most cases the effect of remarks of such nature cannot be cured by any instruction or admonition of
The ease here is not a close one on the evidence, but, on the contrary, the verdict was fully supported by the evidence, and in view of this and the facts above noted we are constrained to hold that the misconduct of counsel, though entirely inexcusable, does not justify a reversal of this judgment.
Such insufficiency of evidence is only properly assignable as a cause for a new trial where the answers are irreconcilable with the general verdict, thereby necessitating judgment on the answers. Sievers v. Peters Box, etc., Co. (1898), 151 Ind. 642, 656, 50 N. E. 877, 52 N. E. 399.
There is no error in the record which calls for a reversal of the judgment Judgment affirmed.
Note.—Reported in 97 N. E. 429. See, also, under (1) 26 Cyc. 1196; (2) 26 Cyc. 1397; (3) 26 Cyc. 1386; (4) 26 Cyc. 1142; (5) 26 Cyc. 1390; (6) 26 Cyc. 1502; (7) 26 Cyc. 1431; (8) 26 Cyc. 1491; (9) 38 Cyc. 1816; (10) 38 Cyc. 1509; (11) 38 Cyc. 1507; (12) 2 Cyc. 1019; (13) 29 Cyc. 836. As to the doctrine of assumption of risk and contributory negligence as affecting employers’ liability, see 97 Am. St. 884; 98 Am. St. 289. As to the duty of mine owners to prevent injury to their employes, see 87 Am. St. 557. For a discussion of the liability of a mine owner to a servant for injuries caused by the falling of the roof or the mine, see Ann. Cas. 1912 B. 577. The authorities on the question of knowledge as an element of employers’ liability are collated in an elaborate note in 41 L. R. A. 33. On the question of negligence of fellow servant concurring with failure of the master to establish or enforce proper rules or regulations for conduct of business, see 4 L. R. A. (N. S.) 516.