Kennedy v. Southern Fire Brick & Clay Co. , 12963.
| Decision Date | 16 December 1927 |
| Docket Number | No. 12963.,12963. |
| Citation | 159 N.E. 1,86 Ind.App. 629 |
| Parties | KENNEDY v. SOUTHERN FIRE BRICK & CLAY CO., Inc. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Vigo County; Wm. T. Gleason, Judge.
Action by George V. Kennedy against the Southern Fire Brick & Clay Company, Inc. From a judgment for defendant, plaintiff appeals. Affirmed.
Benj. F. Stephenson, of Rockville, and Clay A. Phillips, of Terre Haute, for appellant.
Chas. S. Batt and Louis R. Hilleary, both Terre Haute, for appellee.
This action was brought by the appellant to recover damages on account of the death of his minor son, Virgil Kennedy, aged about 17 years, who came to his death at the plant of appellee, located near the town of Montezuma.
The original complaint was in one paragraph, to which an answer in general denial was filed. The cause was submitted to a jury, and, at the close of the testimony offered on behalf of appellant, he asked and obtained leave to file an amended first paragraph of complaint and also a second paragraph of compaint, in order that, as he says, the allegations of the complaint would conform to the evidence. The appellant then announced that he rested his case; the appellee requested the court to instruct the jury to find for the defendant, which request was granted, and the jury so instructed. The appellant's motion for a new trial having been overruled, he now prosecutes this appeal upon an assignment of error which requires a consideration of the matters hereinafter noticed.
The evidence which is in the record discloses, without dispute or controversy, the following facts, viz.: The deceased was, at the time of his death, about 17 years of age; he lived at home with his parents in the town of Montezuma; on the day of his death he had gone to the plant of the appellee to seek employment, at which plant his father and one brother were then employed; that, after he arrived at the plant, not finding the superintendent there, he walked about and visited several different portions of said plant; that he conversed with different persons whom he knew, employees at said plant; that in said plant are several bins in which dried and pulverized fire clay is stored, these bins being about 50 feet long, 20 feet wide, and 20 feet deep, with the sides thereof near the bottom drawn in so as to form a kind of hopper; that in the bottom of the bin in which said son met his death there were two openings through which said fire clay, it being of the...
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...constructive, of danger or peril on the part of a defendant, he cannot be charged with negligence. Kennedy v. Southern Fire Brick and Clay Company, Inc. (1927), 86 Ind.App. 629, 159 N.E. 1. In addition, a plaintiff must have exercised reasonable care for his own 'A person who knows and appr......
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...constructive, of danger or peril on the part of a defendant, he cannot be charged with negligence. Kennedy v. Southern Fire Brick and Clay Company, Inc. (1927), 86 Ind.App. 629, 159 N.E. 1.' In view of the ruling of the trial court on appellees' motions for a directed verdict, the evidence ......
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...constructive, of danger or peril on the part of a defendant, he cannot be charged with negligence. Kennedy v. Southern Fire Brick and Clay Company, Inc. (1927), 86 Ind.App. 629, 159 N.E. 1." Admittedly, the language of the instruction, being a copy of text-book law, is not in the form in wh......
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