Consolidated Stone Company v. Summit
| Decision Date | 16 March 1899 |
| Docket Number | 18,331 |
| Citation | 53 N.E. 235,152 Ind. 297 |
| Parties | The Consolidated Stone Company et al. v. Summit |
| Court | Indiana Supreme Court |
From the Monroe Circuit Court.
Affirmed.
Duncan & Batman, Moses F. Dunn and S. B. Lowe, for appellants.
John R East and Robert G. Miller, for appellee.
Appellee brought this action to recover for personal injuries received by him on account of the alleged negligence of appellants while working in their stone quarry.
Appellants' demurrer to the amended complaint for want of facts was overruled. The jury returned a general verdict in favor of appellee, and also answered interrogatories propounded by appellants. Over appellants' motion for a judgment in their favor upon the answers to the interrogatories notwithstanding the general verdict, and their motion for a new trial, the court rendered judgment in favor of appellee. These rulings of the court are severally assigned as error.
It is alleged in the amended complaint, among other things, in substance, that appellee was a derrick hand, and that a large stone, thirty-five feet long, four feet thick and four and one-half feet wide, weighing many tons, was being turned over by means of a derrick, when it broke in two pieces, at a dry seam running diagonally through the same from top to bottom, and that when it so separated the end of one of the pieces turned up, and struck the west T rail of the track upon which the channeler was moved, and pushed it against appellee's ankle and crushed it; that said dry seam ran entirely through said stone, commencing at the top, extending in a northerly direction, so that, when the same separated, the south end would lift, and raise the broken piece of stone, and tilt it up so as to bring it in contact with such T rail, which fact was known to each of said appellants at and prior to the time of plaintiff's injuries, but was wholly unknown to plaintiff; that the said track so extending over such space was so far above the upper surface of said stone, to wit, two feet and over, that he was unable to imagine any way or manner in which said stone could tilt up and strike the west T rail of the track over which he was attempting to step at the time of his said injury; that said dry seam rendered said stone defective, dangerous, and unsafe, and that said seam was so small that it was not discoverable without a close inspection, and was invisible and hidden from the view of appellee, and at the time of his said injuries he had no knowledge whatever that said stone contained said dry seam, that it was in any way defective, or that there was any danger of the same turning over and injuring him; that appellants knew that said stone was so defective, contained said dry seam, and was dangerous and unsafe for appellee and the other employes to work near and about it, long before appellee received his injuries, but negligently and carelessly caused the same to be turned over in its defective condition, and negligently and carelessly failed to notify or warn appellee of the condition of said stone, and its defects, or the danger of working near it; that said injuries were received by appellee while in the line of his duty as an employe of appellants, and without any fault whatever on his part, but solely on account of the negligence of appellants.
While an employe assumes the risk from obvious defects or dangers, open to ordinary careful observation, or such as would be known by the exercise of ordinary care ( Peerless Stone Co. v. Wray, 143 Ind. 574, 577, 42 N.E. 927), yet it is only necessary to allege that he did not know of such defect or danger; and such allegation not only repels actual knowledge, but any implied knowledge. Evansville, etc., R. Co. v. Duel, 134 Ind. 156, 160, 161, 33 N.E. 355. To sustain such allegation, however, the evidence must show that the employe not only had no knowledge of the defect, but could not have known the same by the exercise of ordinary care. We think this complaint was sufficient to withstand the demurrer for want of facts. Peerless Stone Co. v. Wray, 143 Ind. 574, 42 N.E. 927.
It is next insisted that the court erred in overruling appellants' motion for a judgment in their favor, on the answers to the interrogatories, notwithstanding the general verdict. In discussing this alleged error the appellants call attention to the evidence of appellee, and claim that it shows an assumption of the risk. In determining this question, we cannot look to the evidence, but only to the complaint, answer, and general verdict, and the answers of the jury to the interrogatories.
The general verdict necessarily determines all material issues in favor of appellee, and, unless the answers of the jury to the interrogatories are in irreconcilable conflict with the general verdict, the court did not err in overruling appellants' motion for a judgment in their favor. If such irreconcilable conflict exists, then the court erred in overruling said motion. Ohio, etc., R. Co. v. Trowbridge, 126 Ind. 391, 393, 394, 26 N.E. 64, and cases cited; Town of Poseyville v. Lewis, 126 Ind. 80, 25 N.E. 593, and cases cited; Rogers v. Leyden, 127 Ind. 50, 59, 26 N.E. 210, and cases cited; Graham v. Payne, 122 Ind. 403, 408, 409, 24 N.E. 216; Indianapolis, etc., R. Co. v. Lewis, 119 Ind. 218, 223, 21 N.E. 660.
The jury found, in answer to the interrogatories, that there was a seam in the stone where it separated; that said seam was part mud and part dry; that appellee had no knowledge that there was a seam in said stone before it separated and caused his injury; that before his injury, appellee had no knowledge of the danger from said seam which caused his injury; that appellee could have seen the seam in said stone twenty feet away if he had looked; that appellee, in climbing out of the ledge, and walking over the T rail that struck his foot, adopted the only convenient and safe course to avoid danger; that the stone which struck the T rail was eighteen inches below the T rail before the stone was moved that a...
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