Beard v. Goulding

• Decision Date: 16 January 1914
• Docket Number: No. 8164.,8164.
• Citation: 103 N.E. 875,55 Ind.App. 398
• Parties: BEARD v. GOULDING et al.
• Court: Indiana Appellate Court

55 Ind.App. 398

103 N.E. 875

BEARD

v.GOULDING et al.

No. 8164.

Appellate Court of Indiana, Division No. 2.

Jan. 16, 1914.

Appeal from Circuit Court, Clark County; Harry C. Montgomery, Judge.

Action by David Beard against John Goulding and others. From judgment for defendants, plaintiff appeals. Affirmed.George H. Voigt, of Jeffersonville, and Stotsenburg & Weathers, of New Albany, for appellant. M. Z. Stannard, of Jeffersonville, Paris & Trusty, of New Albany, and James W. Fortune, of Jeffersonville, for appellees.

IBACH, J.

This was an action by appellant against appellees to recover damages for personal injuries sustained by him while in their employ as an engineer in their coal elevator, and is based upon the alleged negligence of appellees in not providing a proper ladder for appellant's use in the performance of the work he was engaged to do. The complaint, after averring facts showing the relation of master and servant and a description of the work appellant was required to do and the character of his working place, proceeds: “That at the time of the grievances hereinafter mentioned there was kept and maintained a wooden ladder running from the first floor of said defendants' elevator down to the basement of said plant; that said ladder was about 18 feet long and was made of wood, consisting of two upright wooden pieces about 18 feet long, which were fastened together with wooden crosspieces or rungs placed about 14 inches apart and being joined to the pieces on each end thereof; *** that said ladder *** was more than 15 years old, and at said day and for a long time prior thereto said defendants had carelessly and negligently maintained, kept, and used said ladder, which was at said time and for a long time prior thereto had been old, decayed, weak, rotten, unsafe, and unfit for use in all its parts; that said defendants at said time knew of the unsafe, unfit, weak, rotten, and decayed condition, or by the exercise of ordinary care and diligence could have known of the same; *** that on June 23, 1909, plaintiff was in the employment of defendants as an engineer, engaged in running the engine on the first floor of said elevator; that on said day, in the proper discharge of his duties as such servant of defendants, it became and was necessary for plaintiff to go down said ladder to the basement of said elevator, and, while in the line of the duty of his employment, he started down said ladder, and while using due care he stepped on the rung of said ladder, when, on account of the unfit, unsafe, old, decayed, weak, and rotten condition of said ladder as aforesaid, the same broke under his weight, thus and thereby precipitating this plaintiff more than 15 feet upon the hard ground, thereby injuring him,” etc.; “that at the time he attempted to use said ladder, and at all times prior thereto, plaintiff was wholly ignorant of the defective, unsafe, rotten, and decayed condition of said ladder; and that its unfit, unsafe, rotten, and decayed condition was wholly unknown to him when he attempted to use the same at the time of his injury aforesaid; that his injuries were caused without any fault or negligence on his part.” There was an answer in general denial, a trial by jury, and with a general verdict for $2,000 in favor of appellant the jury returned answers to 113 interrogatories. Upon motion of appellees, judgment was rendered in their favor on the answers to interrogatories. Error is assigned in the court's sustaining the motion of appellees for judgment on the answers to interrogatories, and in rendering judgment thereon.

[1] In considering the motion for judgment on the answers to interrogatories, it must be kept in mind that the general verdict decided all of the material issues in favor of appellant, and that the answers to interrogatories will not overthrow the general verdict except when they are so antagonistic to each other that both cannot stand.

[2] Another well-known proposition of law controlling motions for judgment on the answers to interrogatories is that in the consideration of such a motion the court can look only to the pleadings, general verdict, and the answers to the interrogatories, and nothing will be taken by intendment or presumption in favor of the answers to interrogatories to aid them in overthrowing the general verdict.

[3] It is also the duty of the court to reconcile the answers to the interrogatories with each other and with the general verdict, if it reasonably can be done. Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235;Harmon v. Foran, 48 Ind. App. 262, 94 N. E. 1050, 95 N. E. 597.

[4] The facts found by the jury in answer to interrogatories, so far as they are pertinent, are, in substance, as follows: That appellant was employed as an engineer; that it was his duty to operate the engine situated on the first floor of the elevator; that he had other duties to perform which required him to use the ladder; that he dropped a cold-chisel from the first floor of the elevator to the basement and had gone down the ladder to procure the chisel; that there were two ways by which he could ascend from the basement to the first floor, one by means of the ladder, and the other by going up an incline; that the ladder consisted of two upright wooden pieces about 18 feet long, fastened together with wooden crosspieces or rungs placed about 14 inches apart and joined to the pieces on each side thereof; that the ladder fell 2 1/2 or 3 feet short of reaching from the ground to the first floor; that the ladder was old, and the step in question was partly decayed, weak, and...