Burford v. Dautrich

• Decision Date: 30 January 1914
• Docket Number: No. 8,107.,8,107.
• Citation: 55 Ind.App. 384,103 N.E. 953
• Parties: BURFORD v. DAUTRICH.
• Court: Indiana Appellate Court

55 Ind.App. 384

103 N.E. 953

BURFORD

v.DAUTRICH.

No. 8,107.

Appellate Court of Indiana.

Jan. 15, 1914.

Dissenting opinion, Jan. 30, 1914.

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by Henry E. Dautrich against William B. Burford. Judgment for plaintiff, and defendant appeals. Affirmed.William A. Ketcham, Howe Stone Landers, and Ralph M. Ketcham, all of Indianapolis, for appellant. Willard Robertson, of Indianapolis, for appellee.

SHEA, P. J.

This is a common-law action by appellee, Dautrich, to recover damages for injuries alleged to have been caused by the negligence of appellant in failing to furnish him with a reasonably safe place in which to work. Dautrich was injured by the falling of an elevator, upon which he stepped to extinguish a light in the line of his duty as night watchman in the printing establishment of appellant, located in the city of Indianapolis. The jury returned a verdict for appellee with damages assessed at $2,000.

It is very earnestly insisted by appellant that the court erred in overruling the demurrer to the complaint because: (1) There is no allegation that appellant's negligence was the proximate cause of the injury. (2) The complaint “affirmatively shows that it was a freight elevator, and as such it was not required by law to be provided with safety devices.” (3) “In a case such as the one at bar the complaint must negative the assumption of risk, and except by way of recital this is not done and this is not sufficient in a pleading.” (4) The complaint “affirmatively shows that the injury was due to a hazard incident to the employment as to which the rule is they are assumed by the employé.”

[1] The complaint is in one paragraph, and is too long to set out here. It is enough to say that it sufficiently charges: (1) The existence of a duty on the part of appellant to protect appellee from the injury complained of; (2) a failure on the part of appellant to perform that duty; and (3) an injury resulting from such failure. And when these elements are charged they together constitute actionable negligence. Chicago, etc., R. Co. v. Lain, 170 Ind. 84, 88, 83 N. E. 632;Faris v. Hoberg, 134 Ind. 269, 274, 33 N. E. 1028, 39 Am. St. Rep. 261;Shirley Hill Coal Co. v. Moore, Adm'r (#22182, Sup.) 103 N. E. 802.

[2] We adhere to and approve what was said in Domestic Block Coal Co. v. De Armey, 100 N. E. 675, 680: “However desirable it may be to the courts to secure pleadings that are scientifically accurate, we are not warranted in reversing judgments solely for such reason.”

It is next contended that the court erred in overruling appellant's motion for a new trial, in support of which it is assigned that the court erred in refusing to give to the jury instructions Nos. 1 to 7, inclusive, tendered by appellant, and in giving instructions Nos. 4, 7, 8, 9, and 14 on its own motion. Error is also predicated on the admission and rejection of certain evidence and misconduct of counsel in argument.

No error was committed in refusing to peremptorily instruct the jury to return a verdict for appellant, which was the effect of instruction No. 1 tendered by appellant and refused by the court.

[3][4] Instruction No. 2, tendered by appellant, states the law correctly, out it is covered by other instructions given by the court.

Instruction No. 3, tendered by appellant, sought to have the jury told that, the elevator which caused the injury being a freight elevator, appellant was not required to supply it with a safety device. This instruction was not pertinent to the issue as tried, and no error resulted from refusing to give it.

Instructions Nos. 5, 6, and 7, in so far as they correctly state the law, are fully covered by other instructions given by the court.

[5] Instruction No. 4, given by the court upon its own motion, is seriously objected to by appellant's learned counsel. It reads as follows: “This is an action to recover damages for personal injuries on the ground of negligence, and before the plaintiff can recover he must establish, by a fair preponderance of the evidence: First, that he has sustained the injuries complained of, or some of them; second, that the defendant committed the acts of negligence, or some of them, charged in the complaint; third, that such injuries were proximately caused by the negligence of the defendant so charged in the complaint and established by the evidence. If the plaintiff has established the foregoing things, then he would be entitled to recover, unless it has also been shown by the evidence that the plaintiff was himself guilty of negligence which caused or proximately contributed to the injuries complained of, in which case the plaintiff would not be entitled to recover.” This instruction is objected to on the ground that it omits the theory of assumption of risk. The instruction is subject to criticism for the reason pointed out, but the question of assumption of risk is fully covered by the court in instruction No. 11. By instruction No. 4 the jury were told that appellee could not recover if he was guilty of any negligence which “caused or proximately contributed to his injury.” In Shirley Hill Coal Co. v. Moore, supra, in considering an instruction subjected to the same criticism, the court say: “Appellant's criticism of this instruction is that it undertakes to set out all the essential elements necessary to show liability on the part of appellant, and therefore the omission of any one of such elements is error. We do not construe it to be a hypothetical instruction undertaking to cover the entire case, but, on the contrary, it only defines the duty of the master to furnish a reasonably safe place in which to work, and to use reasonable care to guard against injury to the servant. Taken in connection with the other instructions given, we think it correct.” Under the rule there stated, error was not committed in the giving of this instruction. If an instruction attempted to state all the facts entitling the plaintiff to recover, and an essential fact be omitted, a different question would be presented.

The objections urged against instructions Nos. 7, 8, and 9, given by the court on its own motion, cannot be sustained.

[6] Instruction No. 14 is objected to because in enumerating the things required to be proved by appellee the court omits the theory of proximate cause. The language of this instruction is sufficient to impress upon the minds of the jury the fact that the injury must have been caused by the proximate negligence of appellant, for by it the jury are told that, if “you find from a preponderance of the evidence in this case that on the date in question the plaintiff was engaged in acting as night watchman for the defendant at the plant in question, and that while in the discharge of such duty, and as a part of such duty, the plaintiff entered the elevator in question to extinguish a light, and if you should further find that the elevator in question was defective and dangerous in the manner alleged in the complaint, and that such defective and dangerous condition was known by the defendant's servant who was charged with the duty of keeping such elevator in repair and maintaining the same in a safe condition a sufficient length of time prior to the receipt of the injury as that said servant of the defendant could reasonably have put the same in a condition safe to the plaintiff, or warned plaintiff of its dangerous condition, and if you should find that by reason of such defective and dangerous condition the plaintiff while so in the discharge of his duties fell and was injured, as charged in the complaint, then your finding should be for the plaintiff, provided the plaintiff has established all the...