Lagler v. Roch
| Decision Date | 19 February 1914 |
| Docket Number | 8,177 |
| Citation | 104 N.E. 111,57 Ind.App. 79 |
| Parties | LAGLER v. ROCH |
| Court | Indiana Appellate Court |
Rehearing denied May 26, 1914.
Transfer denied October 13, 1914.
From Marion Circuit Court; Charles Remster, Judge.
Action by Frank Lagler against Tobias Roch. From a judgment for defendant, the plaintiff appeals.
Affirmed.
Jacob Steinmetz and James M. Ogden, for appellant.
Elmer E. Stevenson, for appellee.
Appellant's complaint alleges substantially the following facts: That appellee, as contractor, had full charge and management of the constructing and erecting of the iron framework for the skylight on the roof of the Linden Hotel in the city of Indianapolis; that on November 12, 1903, appellant, as an employe of appellee, was assisting in placing the channel bars in said framework, at an elevation of about sixty feet above the ground, and that to that end he was standing on a scaffold furnished by appellee; "that defendant carelessly and negligently constructed and maintained the said scaffolding on which plaintiff was standing of loose boards, insufficient in number and disconnected, and that defendant was negligent in furnishing and providing said insecure and insufficient scaffolding. " That appellant was seventeen and one-half years of age, inexperienced, and that all his work theretofore had been on the ground, and that he did not understand, and had not been told of the danger and hazard of working so high above the ground without the proper scaffolding, all of which facts and circumstances were well known to the defendant. "That defendant was negligent in failing to furnish a safe place for plaintiff to work in the construction of said skylight, by failing to furnish the proper protection and scaffolding, while said plaintiff was in the performance of his duties, and said defendant had knowledge that this place was an unsafe place to work, and had knowledge of the improper protection, but the said plaintiff was without knowledge that said place was unsafe in which to work." That while appellant was engaged at said work, "without fault on his part contributing thereto, but on account of said boards on which plaintiff was standing being loose, unnailed and disconnected, and insufficient in number and width to cover and floor said scaffold, as aforesaid, one of said boards slipped as this plaintiff stepped upon the same, and thereby precipitated plaintiff through said scaffold to the ground floor of said building," and that appellant thereby suffered injuries specifically described.
Issues having been formed on the complaint, the cause was tried by a jury, which returned a general verdict in favor of appellant, assessing his damages at $ 4,500. With the general verdict, the jury returned answers to certain interrogatories. The court overruled appellant's motion for judgment on the general verdict, and, on appellee's motion, entered judgment in appellee's favor on the answers to the interrogatories, notwithstanding the general verdict. The error assigned is based on the overruling of the former motion and the sustaining of the latter.
By the answers to the interrogatories, the jury found in substance the following facts: That appellant was seventeen and one-half years old when injured, and that at said time, he was in full possession of his senses of sight and hearing, and that he is a person of ordinary intelligence; that at his father's suggestion, he sought and obtained employment of appellee, not knowing in full the business in which appellee was engaged; that appellant had had several years' prior experience working in factories, and had been working for appellee six months immediately before receiving his injuries, and that he had been engaged for two days at said work of preparing and placing said framework. He knew how said skylight was constructed, and was acquainted with its parts. Appellant received his injuries on a frosty morning; that he and Albert Neitzel were at the time working alone on said framework. When appellant fell, Neitzel was working near the center of the trusses, placing a rod between the two purlines. Some boards had been placed for a walkway from the center of the trusses east to the east wall of the open court. Just before appellant was hurt, he had brought a nut to Neitzel, in going to get and in returning with which, he walked on said walkway, which was not a safe way to go. About the center of said trusses, there was a platform several feet wide, composed of boards, and above this platform was another and smaller one, on which the workmen stood. Appellant had on comparatively new shoes, but Neitzel had not told him not to wear new shoes while working at said work. There was an open court about thirty-five feet square extending from the first floor to said framework. Appellant knew of the existence of said open court, and knew that if he fell, he would fall to the bottom of it. Appellant knew that it was safer to return to the corner after delivering said nut, by walking on said board walkway, rather than by the base of the truss, and he could not have safely returned by the base of the truss. Appellant and Neitzel, about twenty minutes before appellant was injured, had placed a board extending from the north brick wall southeast to the base of one of the trusses, in such a manner as that the southeast end of the board rested on the slanting part of said base, and so that the said southeast end was about one foot higher than the northwest end. This board was six or seven inches wide, two inches thick, and ten or eleven feet long. Although they could have fastened this board, they did not in any manner do so, and appellant knew that it was not fastened. He had placed the board in the manner chosen by himself and Neitzel. Before the time when appellant fell, he held to the purline each time when walking on the board. Appellant, while walking on this board, having hold of a monkey wrench and channel bar, undertook to turn around, and thereupon said board slipped, and caused appellant to fall, and he knew at the time that there was nothing under him but the first floor at the bottom of the court. He fell while turning, holding to the monkey wrench and channel bar. He could have held to the purline or parts of the truss if he had not fallen. The board slipped because appellant and Neitzel had placed one end of it about a foot higher than the other, the higher end resting on the slanting piece of an iron truss, and because it was not fastened. Appellee did not place said board in said position, and did not tell appellant and Neitzel to so place it. Appellee did not know appellant was using said board for a walkway or a scaffold. There were no other boards near at hand that appellant could have used to make a walkway from the north brick wall to the lower chord of the truss. Appellee did not know that appellant was where he was when he fell, but he did know that he was likely to be there. Appellee did not construct or maintain any scaffold on which appellant was when he fell, and appellant did not fall through any scaffold. Appellant and Neitzel at the time when appellant was injured were both working for appellee, doing a part of the manual labor and detail work in constructing and placing said skylight frame. At said time both of them were performing a duty which they owed, as fellow servants, to their common employer, and they were fellow servants in the employ of appellee. The injuries to appellant were purely accidental.
The general verdict amounts to a finding in favor of appellant in each of the following respects: (1) That appellee was guilty of negligence as charged by providing for him, as a youthful and inexperienced workman, a scaffold insufficient in width and insecure by reason of it being composed of loose, unnailed and disconnected boards, and by failing to furnish appellant a safe place in which to work by failing to furnish the proper protection and scaffolding, appellee having knowledge of the facts. (2) That said negligence was the proximate cause of appellant's injury. (3) That appellant did not assume the risk of working at said work, with said insufficient scaffold, and that he was not guilty of negligence contributing to his said injury. The general verdict must stand, unless the facts found by the jury in answer to interrogatories are inconsistent with it, which question we proceed to consider.
There are certain of the answers to interrogatories that must be excluded from consideration. Thus, it is answered that the injury to appellant was purely accidental. To determine that an occurrence was a pure accident excludes the element of guilt or negligence as a causal force. Nave v Flack (1883), 90 Ind. 205, 210, 46 Am. Rep. 205. The process of such exclusion necessitates the application of principles of law to the facts proven. Since the existence or nonexistence of negligence can not be determined otherwise than by recourse to legal principles, where a certain result is reached by applying the artificial rules of law to a state of facts, such result is a conclusion of law. Said answer is, therefore, a conclusion of law, and must be excluded. Marietta Glass Co. v. Pruitt (1913), 180 Ind. 434, 102 N.E. 369; Avery v. Nordyke & Marmon Co. (1905), 34 Ind.App. 541, 558, 70 N.E. 888; Board, etc. v. Bonebrake (1896), 146 Ind. 311, 317, 45 N.E. 470; Ohio, etc., R. Co. v. Stansberry (1892), 132 Ind. 533, 535, 32 N.E. 218; Pittsburgh, etc., R. Co. v. Spencer (1884), 98 Ind. 186, 189; Levins v. Rovegno (1886), 71 Cal. 273, 12 P. 161. The answers that appellant and Neitzel were fellow servants in the employ of appellee, and that they were performing a duty which they owed as fellow servants to their common employer are of a like nature as said...
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