Flickner v. Lambert
| Decision Date | 09 May 1905 |
| Docket Number | 5,166 |
| Citation | 74 N.E. 263,36 Ind.App. 524 |
| Parties | FLICKNER ET AL v. LAMBERT |
| Court | Indiana Appellate Court |
Rehearing denied October 4, 1905. Transfer denied November 16, 1905.
From Warrick Circuit Court; E. M. Swan, Judge.
Action by Arthur Lambert against Arthur L. Flickner and others. From a judgment for plaintiff, defendants appeal.
Affirmed.
Ireland & Reister, for appellants.
Spencer & Brill, for appellee.
Appellants were engaged as partners in the manufacture and sale of harness, collars, etc. While in their employ, appellee, who was plaintiff below, received injuries resulting in the loss of his right hand and part of his right arm. The complaint alleges that said injuries were due to the negligence of the appellants.
As filed, the complaint was in three paragraphs. A demurrer was sustained to the first. The second proceeds upon the theory that appellee was at the time of his injury, by reason of his youth and inexperience, wholly ignorant of the dangers incident to the use of the steam cutter upon which he was set to work by appellants; that it was the duty of appellants to instruct him how to operate said cutter; that they neglected this duty, and by reason thereof he received the injury for which he sues.
The third paragraph contains substantially the averments set out in the second paragraph, and alleges, in addition, that the cutter was operated in a basement of appellants' factory which appellants carelessly and negligently failed to light; that they failed to maintain sufficient openings or windows therein to admit sufficient light by which appellee could work in safety; that the operation of the cutters caused very heavy dust to rise in said basement, and that the dust increased the darkness of said basement; that by reason of said darkness the hazard of operating said cutter was increased, etc.
The cause was put at issue by general denial. The jury returned a verdict for appellee for $ 1,500, and with the verdict, answers to interrogatories. Over appellants' motions for judgment on the answers to interrogatories notwithstanding the general verdict and for a new trial, the court rendered judgment in favor of appellee for the amount of the verdict.
The errors assigned question the sufficiency of each of said paragraphs of complaint, the action of the court in overruling appellants' motion for judgment on the answers to interrogatories, and in overruling the motion for a new trial.
No objections are pointed out to the complaint. The assignment of error is waived.
Did the court err in overruling appellants' motion for judgment on the answers to interrogatories? Appellee was a boy eighteen years of age, employed by appellants through their superintendent, Harry Keelor, to run a machine used to cut straw into lengths of feet or more, known and designated throughout the case as the "long straw cutter," or "hand cutter," and run by hand. Said Keelor at the time appellee was employed fully instructed him in the safe and proper manner in which such hand cutter should be operated. Appellee was not injured by operating the machine which he was employed to operate, but was hurt on a machine run by steam, and known as the "short straw cutter," or "Hocking Valley Cutter No. 11," or, as it was called by the appellee, "Ohio Valley feed cutter." In answer to interrogatories the jury finds specially that the plaintiff at the time of his injury was about eighteen years of age; that he was not engaged in running the hand machine at the time of his injury, but was running the short straw cutter, operated by steam; that he was ordered by James Barner to work on said short straw cutter; that said machine could not be stopped suddenly; that it was not necessary to use a paddle in feeding straw into said cutter, nor for the appellee to put his fingers at or near the rollers in said cutter. In answer to the following question, "How near the rollers is one required to put his fingers to feed said cutter No. 11?" the jury answered, "We can not tell." The jury further finds from the evidence that the plaintiff knew, without any warning or instruction, that his hand would be cut if he should get it in the rollers or knives of said cutter; that on the morning of the injury plaintiff was putting his hand into said cutter No. 11, near the feed-rollers, and that Bradshaw cautioned him about it; that plaintiff knew, or should have known by the exercise of ordinary care, without having his attention drawn to it, or without warning or instruction, that it was dangerous to put his hand at or near the feed-rollers in said cutter No. 11; that with proper instruction the injury which plaintiff received could have been avoided by him if he had exercised ordinary vigilance. The cause of the injury to plaintiff was the failure to warn and instruct him, and insufficient light. The plaintiff knew, without any warning or instruction, that it was dangerous to put his hand against the rollers of the machine known as cutter No. 11. He knew without being told that the place where he was at work was dark. He was employed to run the machine known as the "hand cutter," used to cut long straw. The defendants, or their foreman, ordered the plaintiff to change from the hand machine used to cut long straw to the machine known as Hocking Valley Cutter No. 11. James Barner, through Webber's orders, told the plaintiff to change from the long straw cutter to cutter No. 11.
Appellants insist that the court erred in refusing judgment in their favor, because, as they claim, said answers show: (1) that appellee assumed the risks incurred; (2) that he was guilty of contributory negligence. If either of these claims can be maintained, the court erred in denying said motion. The general verdict finds against appellants upon both of said propositions.
Answers to interrogatories prevail over a general verdict only when they are in irreconcilable conflict therewith. This conflict must be apparent upon the face of the record beyond the possibility of being removed by any evidence legitimately admissible under the issues. Rhodius v. Johnson (1900), 24 Ind.App. 401, 56 N.E. 942, and cases cited. In answer to interrogatory eleven, the jury said that they believed from the evidence that the plaintiff knew, without any warning or instructions, that his hand or fingers would be cut off if he got them in the rollers or knives of said cutter No. 11; in answer to interrogatory twelve, that the evidence showed that Bradshaw, on the morning of the injury, cautioned the plaintiff against putting his hand into said cutter No. 11; in answer to interrogatory thirteen, that with ordinary care the plaintiff knew, or should have known, without having his attention drawn to it, or without warning or instruction, that it was dangerous to put his hand at or near the feedrollers of said cutter No. 11; in answer to interrogatory fourteen, that with proper instructions the injury which plaintiff received could have been avoided if he had exercised ordinary vigilance; in answer to interrogatory sixteen, that the plaintiff knew without any warning or instruction that it was dangerous to put his hands against the rollers of the machine known as cutter No. 11. In answer to interrogatory eighteen, they found that the injury to the plaintiff was due to the failure of the defendant to instruct the plaintiff, and the insufficient light; in answer to interrogatory twenty, that he knew without being told that the place where he was at work was dark.
There is an apparent ambiguity between the answers to interrogatories thirteen and fourteen. Inconsistent answers to interrogatories neutralize one another, and the finding of the general verdict prevails.
Appellee testified that he had never seen the knives or the rollers in the machine; did not know how many knives there were, nor how many rollers; did not know that there were teeth on the rollers; he told Keelor, who employed him, that he knew nothing about machinery; that he was never instructed by any one how to run the machine; had never started nor stopped the machine; his only experience with it was for a brief time the Saturday before he was hurt; the room was dimly lighted, and the air so full of dust that it was necessary for those at work in the room to wear a wet sponge over the mouth and nostrils for protection in breathing. These are facts to be considered in determining whether the conflict alleged between the general verdict and the answers to interrogatories is irreconcilable. The answer to interrogatory thirteen clearly indicates, too, that the jury meant to say that the exercise of ordinary care and vigilance, following proper instructions, would have prevented the accident. The answer to interrogatory twelve manifestly means that Bradshaw testified that he cautioned the plaintiff. In considering these answers with a view to passing upon the alleged conflict, it is proper to note that appellee denied that he had been cautioned by any one.
The answers show also that appellee was employed to work upon a machine operated by hand, not upon the one by which he was injured, and he was instructed with reference thereto. He will not be held to have assumed the risks incident to the operation of another machine which he had not been employed to operate, and concerning which he had received no instructions. ...
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