Elgin Dairy Co. v. Shepherd

• Decision Date: 12 December 1913
• Docket Number: No. 8,165.,8,165.
• Parties: ELGIN DAIRY CO. v. SHEPHERD.
• Court: Indiana Appellate Court

103 N.E. 433

ELGIN DAIRY CO.

v.SHEPHERD.

No. 8,165.

Appellate Court of Indiana, Division No. 2.

Dec. 12, 1913.

Appeal from Superior Court, Marion County; Charles J. Orbison, Judge.

Action by John W. Shepherd against the Elgin Dairy Company. Judgment for plaintiff, and defendant appeals. Reversed, with direction to grant a new trial.

John B. Elam, James W. Fesler, and Harvey J. Elam, all of Indianapolis, for appellant. Earle E. McFerren, Muter M. Bachelder, and Earl R. Cox, all of Indianapolis, for appellee.

LAIRY, C. J.

Appellee, as plaintiff below, recovered a judgment against appellant for damages for personal injuries resulting to him from a collision between a motorcycle upon which he was riding and a motor truck used by appellant in its business and driven by one of its employés. The collision occurred at the intersection of Twenty-Fourth and Bellefontaine streets in the city of Indianapolis, while the motorcycle was crossing Bellefontaine street from west to east and while the motor truck was going south on Bellefontaine street.

With the general verdict the jury returned answers to interrogatories. A motion by appellant for judgment in its favor on the answers to interrogatories notwithstanding the general verdict was overruled. This ruling is assigned as error and presents the first question for our consideration.

[1] It is claimed on behalf of appellant that the answers to interrogatories are in conflict with the general verdict, in that they state facts from which the court can say, as a matter of law, that appellee was guilty of contributory negligence. The court cannot say as a matter of law that the facts found show contributory negligence, unless they are of such a character that no other reasonable inference can be drawn. Under the facts found, the court is of the opinion that minds of equal intelligence and fairness might differ upon the question as to whether or not appellee used ordinary care. This being true, and the jury by its general verdict having found that appellee was free from contributory negligence, the court cannot disturb the verdict on the answers to the interrogatories. We may further say that, under the issues formed by the pleadings, evidence may have been introduced which justified the general verdict in spite of the facts stated in the answers to interrogatories.

Appellant also assigns as error the action of the court in overruling its motion for a new trial. Under this assignment several questions are presented. It is first contended that the evidence shows without dispute that appellee was guilty of contributory negligence, and that therefore the verdict is not supported by the evidence and is contrary to law. The evidence presents practically the same facts as are shown by the answers to interrogatories. Under such a state of the evidence, the question as to whether appellee was guilty of contributory negligence was properly submitted to the jury. The question thus submitted was, however, under the evidence in this case a very close one. The evidence was practically undisputed and showed a state of facts from which reasonable minds might fairly differ. Some might from a consideration of the facts proven conclude that appellee used reasonable care, while others equally fair and reasonable might reach an opposite conclusion.

Complaint is made of the action of the trial court in giving certain instructions to the jury and in refusing certain instructions requested by appellant.

[2] By the fifth instruction the jury was told that “reasonable care” or “ordinary care” is that degree of care which an ordinarily prudent person similarly situated would or ought to have exercised under the circumstances surrounding the transaction under investigation. The test by which ordinary care is to be measured is the care which a person of ordinary prudence would have used, and not such care as the jury may believe such a person would or ought to have used, under the circumstances. While the language of the instruction is open to criticism in this particular, the distinction is a fine one, and we think that so slight an inaccuracy could scarcely have so influenced the minds of the jurors as to have affected the verdict.

[3][4] A more serious objection is presented by the sixteenth instruction, which is as follows: “I instruct you that, in this transaction, each of the parties hereto were required to exercise the reasonable care of an ordinarily prudent person, and either party had the right to assume that the other party would do the duty required of him, and he would have had the right to act on that assumption.”

We have no doubt that such a relation may exist between parties as will justify one of such parties in assuming that a duty which the other party owes to him has been performed. The master owes to the servant the duty to exercise reasonable care to provide him a safe place to work and safe machinery and appliances with which to perform his service. The servant has a right to assume that this duty has been performed, and he is not required to inspect the machinery with which he is required to work or to examine his working place to discover possible dangers. Unless the danger is apparent, he has a right to proceed upon the assumption that the master has performed the duty which the law imposes. In such a case, however, the duty in respect to providing safe machinery and a safe place to work is one which rests solely upon the master for the benefit of the servant. The servant owes no duty to the master in this respect. If this duty was a reciprocal one, resting upon the servant as much as upon the master, we think that it is quite clear that the servant could not rely...