Cincinnati Gas, Coke, Coal & Mining Co. v. Underwood

• Decision Date: 11 December 1914
• Docket Number: No. 8409.,8409.
• Citation: 107 N.E. 28,60 Ind.App. 351
• Parties: CINCINNATI GAS, COKE, COAL & MINING CO. v. UNDERWOOD.
• Court: Indiana Appellate Court

60 Ind.App. 351

107 N.E. 28

CINCINNATI GAS, COKE, COAL & MINING CO.

v.UNDERWOOD.

No. 8409.

Appellate Court of Indiana, Division No. 1.

Dec. 11, 1914.

Appeal from Superior Court, Marion County; Joseph Collier, Judge.

Action by Edgar Underwood against the Cincinnati Gas, Coke, Coal & Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank S. Roby, Ward H. Watson, and Elias D. Salsbury, all of Indianapolis, and Pogue & Pogue, of Cincinnati, Ohio, for appellant. Doan & Mathews, of Indianapolis, for appellee.

SHEA, J.

Action by appellee against appellant to recover damages for personal injuries alleged to have been negligently inflicted upon him. The complaint in one paragraphalleges substantially the following: That appellant was a corporation conducting business in Marion county, Ind., and on April 17, 1909, was operating a sandboat and gravel plant on White river, near Morris street, in the city of Indianapolis, Ind. That for the purpose of pumping the gravel it had an engine and boiler located on a flatboat on said river used to operate the pump which pumped the sand and gravel from the bottom of the river and carried it into a crib located on the bank. The cribs contained sieves for screening the gravel and sand, and were about 25 feet high and 5 by 6 feet on the sides, constructed of four upright posts upon which planks were nailed closely together, forming a long crib or box, with the posts at each corner, and situated on the inside thereof. Appellee was employed by appellant as fireman and workman on the boat, and was under the management, direction, and control of one Curry, who was the foreman in charge of the operation of the boat, and whose duties included the location and operation of the cribs. That appellant had located said crib and “constructed a scaffolding upon said crib for the purpose of affording a place for this plaintiff and other workmen to stand while in the performance of work for these defendants. That said scaffold was constructed by means of crosspieces being nailed upon each side of said crib and nailed to said upright posts within said crib, and extending out beyond the sides of said crib for a distance of about one foot upon each side thereof, and that upon the extension of said crosspieces so nailed a plank or board was placed which formed said scaffolding.” That this scaffolding was situated about 15 feet from the ground, and that it was necessary to be so constructed in order that persons might get within said crib to adjust the screens for the purpose of screening gravel, as it was pumped out of the river and came into the crib. That appellee was ordered to go upon said scaffold for the purpose of adjusting the gravel screen within the crib, and, while so in the performance of his work under the direction of the foreman, said scaffolding gave way and fell to the ground, causing him to sustain serious injuries. The acts of negligence charged are: That said scaffolding was negligently constructed, in that it was nailed to said posts which were so rotten and decayed that they would not hold an ordinary nail, of which condition appellant had knowledge. That appellant negligently permitted the scaffolding so constructed to remain, and negligently ordered appellee to go upon same in the performance of his work. That, by reason of the negligent construction, the nails pulled out of the rotten posts by the weight of appellee, and thereby caused the scaffolding to fall. It is alleged: That appellee had no knowledge of the condition of the crib, nor that said posts were rotten and decayed, and that it was impossible for him to ascertain this, for the reason that the posts to which the supports for the scaffold were nailed were inside and covered by the planks forming the sides of the crib. That it was impossible for him to have seen same by the exercise of ordinary care, and that he had nothing to do with the construction of the crib or scaffold.

Appellant's demurrer to the complaint was overruled. An answer in general denial formed the issues submitted to the jury for trial. Finding and judgment for appellee for $2,500.

The errors relied on for a reversal are that the court erred in overruling appellant's demurrer to the complaint and its motion for a new trial.

[1] The complaint is vigorously assailed by appellant. The complaint avers with sufficient clearness that it was the duty of the master to furnish appellee, its servant, a safe place to work. It also charges a breach of the duty, resulting in the injuries complained of, and is therefore sufficient to withstand a demurrer. Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99.

The grounds alleged for a new trial, so far as they are presented to this court, are as follows: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the court erred in giving to the jury on his own motion instructions numbered from 1 to 20, inclusive.

[2] This court will not weigh the evidence for the purpose of determining where the preponderance lies. If proper evidence was heard by the jury upon which to base its verdict, this court will not review it.

[3] The evidence discloses that appellee, Underwood, was hired by Mr. Phillips, an employé of appellant company in charge of its sandboat and gravel plant, as described in the complaint. Several days before the injury complained of Phillips, said foreman in charge of the plant, complained to defendant company and its officers of the condition of the sand cribs then in use, stating that he had no material with which to make necessary repairs. He was directed then by said company to use such material as he had, as they could not supply him with other things. It became necessary to move the crib in question from the position which it then occupied. Mr. Phillips was directed to do this work by the officers of the company. He was also directed to use such men as were employed about the place to assist him. Pursuant to this direction Phillips ordered Underwood to assist him in the work of moving the particular crib. This he did to the extent of driving the team hitched to the crib, with a rope about 100 feet in length, dragging it a distance of - feet, at which place it was raised to an upright position, and made fast to the ground. The evidence discloses that, after it was so placed in position, the scaffolding in question was erected by Phillips. Appellee, Underwood, testified that Phillips did all the work; that he knew nothing of it until he was directed to assist in repairing the screen, testifying as follows:

“Q. This scaffolding-was it on it when it was put up, or was it put on afterwards? A. It was put on afterwards. Q. Who put it on? A. Mr. Phillips. Q. Were you present when he put it on? A. No, sir. Q. I asked you, Were you up there at any time while he was putting this scaffolding up? A. No, sir; I did not know this scaffold was up until I went out there.”

The evidence disclosed that upon the inside of this particular crib constructed substantially in the manner described in the complaint were placed certain screens used for the purpose of separating the gravel from the sand, and it became necessary in some manner to repair these screens. Phillips directed appellee, Underwood, to assist him in this work by carrying certain materials from the ground up the ladder, an elevation of about 15 feet, and handing them to him, Phillips, who was on the inside of the crib. It became necessary for Underwood to take his position on the scaffold to assist in the work. In so doing, he carried and used a crowbar. It is suggested in argument by appellant's learned counsel that the accident must have been caused in some way by appellee's effort to assist Phillips with the...