Indianapolis Union Ry. Co. v. Ott

• Decision Date: 21 November 1893
• Parties: INDIANAPOLIS UNION RY. CO. v. OTT.
• Court: Indiana Appellate Court

35 N.E. 517

INDIANAPOLIS UNION RY. CO.

v.OTT.¹

Appellate Court of Indiana.

Nov. 21, 1893.

Appeal from superior court, Marion county; James W. Harper, Judge.

Action by Thomas B. Ott against the Indianapolis Union Railway Company for damages for personal injuries. From a judgment of the general term reversing the special term's judgment for defendant, defendant appeals. Reversed.

Baker & Daniels, for appellant. Lamb & Hill, for appellee.

ROSS, J.

The appellee sued the appellant in the superior court of Marion county to recover damages for personal injuries sustained by him while in its employ as a brakeman. Upon issues formed, the cause was tried, the jury returning a general verdict in favor of the appellee, assessing his damages at $2,000. They also returned answers to interrogatories submitted to them by the court at the request of the appellant. Upon motion of the appellant, judgment was rendered in its favor on the answers to the interrogatories, notwithstanding the general verdict. From this judgment the appellee appealed to the general term, where the judgment at special term was reversed, and the court at special term directed to enter judgment on the general verdict in favor of the appellee. From the judgment of reversal, the appellant prosecutes this appeal.

The first question urged by appellant is that the court at general term did not have jurisdiction of the action, for the reason that no appeal was prayed for and granted in special term, as provided for under the statute granting the right of appeal from the special to the general term. Section 1361, Rev. St. 1881. It is contended that, under this section of the statute, it is a necessary prerequisite to the jurisdiction of the general term that an appeal from the special term be prayed for, which must be granted as of right. It is true, as contended for by counsel, that in the absence of jurisdiction the court at general term could not render a judgment which would be binding upon the parties. Can the parties, by agreement, vest the court with jurisdiction? When the court has no jurisdiction over the subject-matter, jurisdiction cannot be conferred by agreement of the parties. Railroad Co. v. Harrold, 3 Ind. App. 592, 30 N. E. 158; Railroad Co. v. Renner, 17 Ind. 135;Davis v. Davis, 36 Ind. 160;Horton v. Sawyer, 59 Ind. 587;Doctor v. Hartman, 74 Ind. 221;Smith v. Myers, 109 Ind. 1, 9 N. E. 692;Tucker v. Sellers, 130 Ind. 514, 30 N. E. 531. But, if the court has jurisdiction of the subject-matter, jurisdiction of the person may be conferred by an appearance. State v. Ennis, 74 Ind. 17;Kinser v. De Witt, (Ind. App.) 34 N. E. 1014, and cases cited. That the general term had jurisdiction of the subject of the action on appeal is evident. Hence, it was only necessary for it to acquire jurisdiction of the parties, to have complete jurisdiction of the cause. When the appellant appeared at general term, and agreed to the submission of the cause, it submitted to the jurisdiction of the general term, and thereby waived the right to question the jurisdiction of it. Slauter v. Hollowell, 90 Ind. 286, and cases cited. While the above section of the statute provides that “it shall only be necessary for a party appealing from a special to the general term to pray an appeal to the general,” we cannot concur in counsel's contentionthat it is necessary to pray an appeal in order to vest the general term with jurisdiction.

Did the court at special term err in rendering judgment in favor of the appellant on the answer to interrogatories? Section 547, Rev. St. 1881, is as follows: “When the special finding of facts is inconsistent with the general verdict, the former shall control the latter and the court shall give judgment accordingly.” In construing this section, however, it has always been held that if the answers to interrogatories can, upon any reasonable hypothesis within the issues, be reconciled with the general verdict, they will not override the general verdict. Railroad Co. v. Gilmore, 1 Ind. App. 468, 27 N. E. 992;Jacquay v. Hartzell, 1 Ind. App. 500, 27 N. E. 1105;Hoffman v. Toll, 2 Ind. App. 287, 28 N. E. 557; Railroad Co. v. Brannegan, 5 Ind. App. 540, 32 N. E. 790;Railway Co. v. Johnson, (Ind. App.) 33 N. E. 1004;Railway Co. v. Creek, 130 Ind. 139, 29 N. E. 481;Shoner v. Pennsylvania Co., 130 Ind. 170, 28 N. E. 616, and 29 N. E. 775; Railroad Co. v. Summers, 131 Ind. 242, 30 N. E. 873;Commissioners v. Newlin, 132 Ind. 27, 31 N. E. 465. If there is no irreconcilable conflict between the answers to the interrogatories and the general verdict, the objection to the judgment of reversal entered by the court in general term is not well taken.

The appellee sought to recover for an injury received while in the appellant's employ as a brakeman, by having his arm crushed by being caught between the iron block on the sides of the drawbars of the cars he was in the act of coupling. It is alleged in the complaint that, when he accepted employment in appellant's service, he was furnished with a lantern to be used by him in the performance of his duties; that the lantern so furnished to him, either from defects in its construction originally, or from its having become impaired, was liable, in the ordinary mode of using it, “to go out;” that appellee, upon discovering the defect, reported the fact to appellant and was informed that that was the best lantern that could be furnished him at that time, but that appellant had ordered a supply of lanterns, and when they came he would be supplied with a new one, and be was requested to continue the use of the defective lantern until the new ones arrived; that he continued in appellant's service, relying upon the promise to furnish a new lantern, and believing that there was no great, immediate, and imminent danger in using said lantern; and that he did use the defective lantern until December 8, 1888, when, by reason of the light of said lantern going out while he was in the act of making a coupling, he was injured without fault on his part, etc. When the appellee engaged in the service of the appellant, he assumed the risks naturally incident thereto. If he suffered injury resulting from the risks thus assumed, he cannot recover therefor. The risks thus assumed were such only as were naturally incident to the service, and not such as he might be brought in contact with by reason of the neglect of his employer to provide him with reasonably safe and suitable tools and machinery. Those risks which are naturally incident to the service are such as naturally flow from the hazard of the services to be performed, and as to them the servant is presumed to have contracted when he engaged in the service. It follows, therefore, that, having so contracted, he cannot be heard to complain if injury results. A servant engaging in the service of a master without any knowledge of the kind or condition of the machinery with which he is to work is not presumed to have contracted with a view to using unsafe and defective machinery, and has a right to assume that the master will furnish him reasonably safe machinery. This presumption, however, does not relieve the servant from ascertaining for himself the condition of the machinery, if it is apparent. If he remains in the master's service after acquiring knowledge of the defective condition of the machinery, which increases the danger of his service, he thereby assumes the extra hazard occasioned by such defect. Coal Co. v. Barth, 5 Ind. App. 159, 31 N. E. 585;Becker v. Baumgartner, 5 Ind. App. 576, 32 N. E. 786;Bridge Co. v. Eastman, (Ind. App.) 34 N. E. 835;Umback v. Railway Co., 83 Ind. 191; Railroad Co. v. Dailey, 110 Ind. 75, 10 N. E. 631;Railway Co. v. Watson, 114 Ind. 20, 14 N. E. 721, and 15 N. E. 824;Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. 770;Coal Co. v. Young, 117 Ind. 520, 20 N. E. 423;Pennsylvania Co. v. O'Shaughnessy, 122 Ind. 588, 23 N. E. 675;Railway Co. v. Corps, 124 Ind. 427, 24 N. E. 1046;Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. 741. It is also settled that a servant remaining in the master's service, in the use of defective machinery, with knowledge of its defective condition, from which danger is not great or imminent, may recover if he remains in such service under a promise made by the master to repair said defects.

With these general principles established, it remains to be determined whether or not the answers to the interrogatories show the general verdict to be contrary to the law. The interrogatories, with the answers thereto as returned by the jury, are as follows: “First. Did the plaintiff first enter the employment of the defendant on the 4th of December, 1888, and was he on that day employed by the defendant as a yard switchman or brakeman upon a day crew? Answer. Yes. Second. Was the plaintiff, from the time of his employment by the defendant until he was injured, on...