Hammond v. Kingan & Co.

Citation53 Ind.App. 252,101 N.E. 385
Decision Date04 April 1913
Docket NumberNo. 7,835.,7,835.
PartiesHAMMOND v. KINGAN & CO., Limited, et al.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Marion County; Charles E. Remster, Judge.

Action by George Hammond, administrator, against Kingan & Company, Limited, and others. From a judgment for defendants on the answers to special interrogatories notwithstanding the general verdict for plaintiff, plaintiff appeals. Reversed, with directions to sustain plaintiff's motion for judgment on the general verdict.

E. W. Little, Saleem D. Clark, Frank S. Roby, and Ward H. Watson, all of Indianapolis, for appellant. Miller, Shirley, Miller & Thompson, of Indianapolis, for appellees.

LAIRY, J.

Appellant's decedent was employed by appellee in its packing house as a meat cutter, and while so employed was killed by coming in contact with the uninsulated terminals of a motor located in the plant of appellee and used to operate a saw. The case was tried by a jury which returned a general verdict in favor of appellant. The court submitted to the jury a number of interrogatories which were answered and returned with the general verdict. Appellant made a motion for a judgment in his favor on the general verdict, which motion was overruled. Appellee then moved for a judgment on the interrogatories notwithstanding the general verdict, which motion was sustained and judgment rendered accordingly. Appellant excepted to both of these rulings and brings the questions thus presented to this court for review.

[1] The decision of this question involves a consideration of the issues presented by the pleadings, the interrogatories, and the general verdict. The complaint filed consisted of four paragraphs, but in view of the conclusion we have reached we need consider only the issues formed upon the second paragraph. If the interrogatories are not in irreconcilable conflict with the general verdict when considered in connection with the issuesformed upon this paragraph, the general verdict must stand as against this motion, for it is well settled that the general verdict will be upheld if the interrogatories can be reconciled therewith upon any supposable state of facts provable within the issues formed by the pleadings. Lake Erie, etc., Co. v. Charman, 161 Ind. 95, 67 N. E. 923;Union Traction Co. v. Barnett, 31 Ind. App. 467, 67 N. E. 205.

In view of the question presented it is not necessary to set out all of the allegations of this pleading. It alleges, in substance, that the decedent at the time of his death was in the employ of the defendant and was engaged in cutting meat at a table in its packing house, and that defendant was, and had been for some time prior thereto, operating a saw on another table by means of an electric motor or dynamo which was placed under a table in close proximity to the place where decedent was required to work. It further appears from such allegations that the binding posts of the motor so placed were negligently left uninsulated and unguarded, and that they carried a current of electricity sufficient to cause death. The complaint also charges that the defendant negligently permitted the floor to become and remain wet, greasy, and slippery at the place where decedent was required to work, and that it negligently installed and maintained the motor with the uninsulated binding posts in close proximity, knowing of the dangerous and slippery condition of the floor, and knowing that decedent was likely to fall by reason thereof and come in contact with the exposed and uninsulated binding posts. It is alleged that decedent did not know that the binding posts were uninsulated or unguarded, and that he did not know that they carried a dangerous current of electricity, and that defendant failed to warn him of such conditions; but it is not alleged that decedent did not know of the slippery and dangerous condition of the floor.

The general verdict returned by the jury is a finding in favor of the plaintiff upon every material allegation of this paragraph of complaint. It finds that the defendant was guilty of the acts of negligence charged, that the plaintiff did not know of the danger to which he was exposed by reason of such negligence, that the negligence charged caused the death of decedent as stated in the complaint, and that the resulting damage was $5,000. In reviewing the ruling of the trial court upon the motion for judgment on the interrogatories, we are required to determine whether any of the facts found in response to such interrogatories are in irreconcilable conflict with the general verdict in respect to any of the particulars stated.

It is not seriously contended that the answers to interrogatories negative the facts charged in the complaint as constituting negligence on the part of the defendant; but it is contended that such answers show that the slippery condition of the floor was the sole proximate cause of the death of decedent, and that he had knowledge of this for a long time prior to his injury, and that, as a matter of law, he assumed the risk of any injury caused thereby.

[2] The answers to the interrogatories show that decedent had worked for three or four months at the same place he was working at the time he was injured, that the floor was habitually in a damp, greasy, and slippery condition, that it had been in such a condition during all of the time he had...

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