Emrich Furniture Co. v. Byrnes

• Decision Date: 02 April 1909
• Docket Number: No. 6,457.,6,457.
• Parties: EMRICH FURNITURE CO. v. BYRNES.
• Court: Indiana Appellate Court

44 Ind.App. 341

87 N.E. 1042

EMRICH FURNITURE CO.

v.BYRNES.¹

No. 6,457.

Appellate Court of Indiana.

April 2, 1909.

Appeal from Circuit Court, Marion County; Henry Clay Allen, Judge.

Action by Joseph Byrnes against the Emrich Furniture Company. From a judgment for plaintiff, defendant appeals. Reversed.Elam & Fesler, for appellant. George W. Galvin, for appellee.

RABB, J.

Appellee brought this action against appellant to recover damages for injuries alleged to have been sustained by him while engaged in appellant's service, and through the alleged negligent fault of appellant. The complaint was answered by a general denial. There was a jury trial had, resulting in a verdict in favor of appellee, and with the verdict the jury returned answers to interrogatories submitted to them. Appellant's motion for a judgment in its favor on the answers to interrogatories and its motion for a new trial were each overruled. These rulings of the court below are assigned as error here, and we will consider them in their order.

It is insisted that the answers to interrogatories returned by the jury show that appellee failed to make out a case against appellant (1) in that the answers disclose that there was no evidence of negligence on the part of appellant proximately causing appellee's injury; (2) that the interrogatories disclose that there was no evidence that the risk of the injury sustained by appellee was not an assumed risk of his employment; and (3) that the answers to interrogatories affirmatively show appellee to have been guilty of contributory negligence. The answers to interrogatories in many respects, in which it is claimed they antagonize the general verdict, are neutralized by contradictions, and, considering all the presumptions, inferences, and intendments that are to be indulged in favor of the general verdict, and considering that the evidence actually given upon the trial of the cause cannot be considered, in aid of the answers to the interrogatories, to supply any omission therein, or to rebut any presumption or inference that might be indulged in favor of the general verdict, we think that it cannot be said that the answers to the interrogatories so antagonize the general verdict as to entitle the appellant to a judgment in its favor thereon, and that no error intervened in overruling its motion.

One of the reasons assigned for a new trial is the insufficiency of the evidence to sustain the verdict, and this reason is pressed upon our consideration as one of the grounds for a reversal of the judgment. This court cannot relieve parties from mistakes made by the jury or court below, in the determination of questions of fact. We cannot weigh the evidence. If there is any legal evidence to sustain the finding of the trial court, or the verdict of the jury, this court is bound to sustain such finding or verdict. But if there be no legal evidence to sustain such finding or verdict in favor of a party having the burden of the issue, such finding or verdict will require the reversal of the cause at the hands of the Appellate Court. The evidence in this case discloses that the appellee was injured by the fall of a heavy iron frame used in compressing veneered boards in appellant's furniture factory. The frame which fell upon appellee was about 42 inches in height, about the same in length, and 12 inches wide. It had a solid iron platform for a base, with flanges extending outward from each end, about 4 inches from the bottom, and at right angles with another flange extending downward about 2 inches. The top of the frame was connected with the bottom by four round iron rods or tubes, about 2 inches in diameter, one at each corner, and through the top three screws passed, which were used to compress the material veneered, between the plate on the screw, and the platform of the frame. An iron plate extended down from the front of the base of the plate, in slightly elliptical form, until at the center it would apparently be on a level with the bottom of the lower flange on the frame. There were, at the time appellee was injured, 24 of these frames in use in appellant's factory. They all sat upon a wooden railway about 30 feet in length. The railway was composed of oak pieces from 8 to 12 feet in length, and about 4 inches square, and the rails fit into the angle formed by the flanges at each end of the frame. Each frame weighed about 500 pounds, the top and base being of about equal heft. The frames were not attached to the rails, nor the rails to the floor, otherwise than by their own weight. The accompanying cut illustrates the character of the frame, and the manner in which it sat upon the rails, better than it can be described:

Image 1 (4.72" X 4.94") Available for Offline Print

It is the theory of appellee's case that the appellant was guilty of negligence in failing to nail, or otherwise securely fasten, the rails to the floor, and to securely fasten the press to the rails, and that by reason of such failure the press slipped or worked off of the rails, and thereby lost its balance and fell over on the appellee, while he was engaged in his work about the frame. It was incumbent on the appellee to establish, not only that the accident happened, and he was injured, but also that the accident was the result of some negligent act or omission on the part of appellant, and that the injury did not arise from a risk assumed by the appellee. The evidence further shows that the press which fell upon and injured the appellee was, at the time of the accident, being used in connection with three other presses that stood about 4 inches apart, that all the presses were alike, and they were used in appellant's factory to press veneered boards of various lengths, from 1 foot to 6 or 7 feet, and that for this purpose the presses were required to be moved about on the rails to accommodate the length of board required to be pressed.

The testimony of appellee's witness Koerner is to the effect that they could be nested together in bunches of from two to four or five presses, and would remain in one place sometimes two hours, sometimes half a day, and sometimes for a much longer time. This particular bunch of presses that were being used together at the time of the accident had been loaded the night before with a stack of drawer fronts about 18 inches in height, 4 feet in length, and 1 foot in width, and the press put upon them. The appellee had been engaged in appellant's service for about four months. The duties of his employment required him to work with and about these presses daily. They were the ordinary implements of his employment. There was nothing about the press that he did not have every opportunity to know. Its form, size, and construction, and its liability, if there was any, to be easily overturned were all open and plainly visible to him. He knew that the presses were not firmly attached to the rails; he had helped move them about upon the rails.

It is pointed out that there were holes in the flanges of the presses, indicating that they were intended to be fastened to the rails upon which they sat, and it is argued, therefore, that appellant was guilty of negligence in not bolting them to the rails. The appellee testifies that he knew these holes were in the flanges, for the bolts to go through, and he undoubtedly did. He had every opportunity to know that the holes were there. His daily employment about and with the machines gave him such opportunity to have full information upon this subject. Knowing that the holes were there, he necessarily knew they were not filled with bolts. By seeing the machines moved, as the evidence introduced by appellee shows they were, and by helping move them himself, he had positive knowledge that they were not attached to the rails by bolts or screws, or in any other manner. The evidence shows conclusively that the appellee knew all there was to know with reference to the danger of the press falling on him, arising from its size, weight, form, and the fact that it was not firmly attached to the rails. Under the well-settled rules of law these risks were therefore assumed risks of his employment. Not only is this so, but the evidence introduced by appellee affirmatively shows that the necessity there was of moving these presses about, and nesting them together to accommodate the size of the stuff to be pressed, made it impractical to bolt them or otherwise firmly attach them to the rails on which they sat.

Of the alleged dangers arising from the use of the presses by appellee there was only one on which the evidence...