Baltimore & O.S.W.R. Co. v. Amos

• Decision Date: 15 March 1898
• Citation: 49 N.E. 854,20 Ind.App. 378
• Parties: BALTIMORE & O. S. W. R. CO. v. AMOS.
• Court: Indiana Appellate Court

20 Ind.App. 378

49 N.E. 854

BALTIMORE & O. S. W. R. CO.

v.AMOS.¹

Appellate Court of Indiana.

March 15, 1898.

Appeal from circuit court, Jennings county; Willard New, Judge.

Action by Joseph Amos against the Baltimore & Ohio Southwestern Railway Company to recover for personal injuries caused by defects in a tool. Judgment for plaintiff, and defendant appeals. Affirmed.

McMullen & McMullen, for appellant. T. C. Batchelor, for appellee.

BLACK, J.

The appellee's complaint against the appellant was held sufficient on demurrer. The objections urged against the complaint, in argument relative to this ruling, assail the pleading for want of definiteness, rather than for failure to state a cause of action. Upon motion, it was made more definite in some respects. The motion to require it to be made more definite having been renewed, it was overruled, and this ruling is assigned as error; but, in the bill of exceptions by which it was sought to save this matter, the written motion stating wherein it was sought to have the pleading made more specific was not set out. In the place where it should have been copied into the bill, a reference is made to another part of the transcript, where it is inserted by the clerk. Not being a part of the record, though thus in the transcript, the motion, showing in what respect it was desired to have the complaint made more specific, could not be brought into the record by a reference in the bill of exceptions. This has been decided frequently. See Colee v. State, 75 Ind. 511, and authorities there cited.

There was a special verdict, upon which the court rendered judgment for the appellee. In the special verdict the facts were found substantially as follows, omitting mere preliminaries: The appellee, on the 5th day of February, 1894, was in the employ of the appellant, as a section hand on its railroad, and as such employé was subject to the appellant's control. The appellant, by its section foreman, ordered the appellee to break stone for the appellant with a certain hammer, which was furnished by the appellant, and was fitted with a wooden handle, made of a hickory pole with the bark on it. The handle was worm-eaten and decayed under the bark, and by reason of its worm-eaten and decayed condition rendered weak and unsafe for use. It had been cut for several years. It was found that the appellant by the use of ordinary, diligent inquiry, could have learned, prior to said day, that said handle had been cut for so long a time as to render it unsafe for use, and that it is a fact that hickory poles, when cut green, the bark being left on, become decayed and worm-eaten, and are thereby rendered liable to break. It was also stated that the appellant, by a reasonable, prudent, and careful inspection of said handle, could have ascertained, before furnishing it to the appellee, that it was decayed or worm-eaten and unfit for use. While appellee was breaking stone with said hammer for the appellant, in the usual and ordinary way of doing such work, on said day, the handle broke near the hammer. When it broke, the appellee was breaking stone by striking the stone with the hammer, using no more force than was proper and necessary to break the stone. The breaking of the handle caused the hammer to glance, and thus caused a piece of stone to fly towards appellee and to strike him in the right eye, wounding the eye, and destroying the sight thereof. The particulars of the consequent damages were set forth, and the sum of $3,000 was found to be a reasonable compensation for the injury. It was stated by the jury that the appellee was wholly ignorant of the faulty, decayed, and worm-eaten condition of the handle, up to the time it broke; that he had no opportunity to learn, by the use of ordinary diligence and care, of the decayed and worm-eaten condition of the handle, before it broke. It was further found that the appellee had not used the hammer with the same handle before the day he was injured; that the...