Leader v. Bowley, 19254

• Decision Date: 30 November 1961
• Docket Number: No. 19254,No. 2,19254,2
• Parties: Charles LEADER, Appellant, v. Roy James BOWLEY, Appellee
• Court: Indiana Appellate Court

Page 445

178 N.E.2d 445

132 Ind.App. 528

Charles LEADER, Appellant, v. Roy James BOWLEY, Appellee.

No. 19254.

Appellate Court of Indiana, Division No. 2.

Nov. 30, 1961.

George T. Schilling, Russell H. Hart, Lafayette, Stuart, Branigin, Ricks & Schilling, Lafayette, of counsel, for appellant.

O'Neill & O'Neill, Logansport, for appellee.

BIERLY, Judge.

This is an action brought by Roy James Bowley, plaintiff-appellee, a farm employee, against Charles Leader, defendant-appellant, his employer, to recover damages for personal injuries.

The issues raised in said cause were formed by appellee's complaint, an answer in two paragraphs by appellant, and a reply by appellee to appellant's second paragraph of answer.

Trial was had by a jury. A verdict in the sum of $7750.00 was returned by the jury in favor of appellee. Within the time prescribed by the rules, appellant filed a motion for a new trial. This was overruled. Thereupon, the court entered judgment consistent with the verdict in favor of appellee.

Appellee alleged in his complaint this appellant directed him to remove from a mower sickle bar, a sickle, while at the time appellant attempted to loosen the sickle, by striking the head thereof with a hammer. It is further alleged by the appellee that as a result of the striking with the hammer by the appellant, a piece of cast iron broke off the head, of the sickle by reasons of said blows, and, was driven into the left eye of the appellee, thereby causing injury to the plaintiff. Said complaint alleges that the injuries to appellant were due to the acts of negligence and a carelessness of appellant in negligently striking the metal sickle head of the sickle with a hammer 'within a proximate distance of two and one-half (2 1/2) feet to three (3) feet of the position of the plaintiff;' that appellant negligently ordered appellee into a position of danger with knowledge that this position was dangerous; and that appellant was negligent in not providing goggles for appellee.

Appellant answered said complaint by denial, and an allegation that the injuries suffered by appellee were a result of risks assumed by him, and were incidental to such employment. To this, appellee alleged that he acted under direction of appellant.

At the close of appellee's evidence, appellant filed motion for a directed verdict. This motion was overruled. Moreover, at close of all the evidence, appellant renewed his motion for a directed verdict which motion the court likewise overruled.

Appellant relies in his motion for a new trial on each of the following grounds:

'1. The damages assessed by the verdict of the jury are excessive.

'2. The verdict of the jury is not sustained by sufficient evidence.

'3. The verdict of the jury is contrary to law.

'4. Errors of law occurring at the trial, as follows:

'(A) The Court erred in refusing to give to the jury at the request of the defendant each of the written instructions tendered and requested by the defendant and numbered on (1), two (2), three (3), four (4) and nine (9).

'(B) The Court erred in giving to the jury, at the request of the plaintiff, plaintiff's instruction numbered one (1), and to the giving of which instruction the defendant duly objected within the proper time by filing written objections to said instruction after the Court indicated the instructions it would give to the jury.

'5. The Court erred in overruling defendant's motion, made at the close of all the evidence, to instruct the jury to return a verdict for the defendant.'

Appellant's assignment of error alleged error by the trial court in overruling appellant's motion for a new trial.

As shown by his brief, appellant, for a reversal of the judgment relies primarily upon the insufficiency of the evidence.

We may well summarize appellant's position in the case at bar, in that; (1) the foreign body entering appellee's eye was non-magnetic; (2) the evidence was insufficient from which a reasonable inference can be deduced that appellant violated any duty he owed appellee; (3) that there is lacking evidence from which a reasonable inference can be deduced that appellee did not assume the risk; (4) and that the evidence is legally insufficient to determine appellant's negligence was the proximate cause of appellee's injury.

Appellee argues that (1) abundant evidence was produced to support the jury's verdict that the appellant had violated his duty to the appellee in failing to guard him against 'the hazard and danger the appellant directed the appellee to be placed in with full knowledge of such danger on the part of the appellant,' (2) the conversation between the appellant and the appellee, in which appellee said to appellant, 'You knocked my eye out,' and 'he (appellant) said he did not mean to do it,' as testified by appellee on direct examination, can only be interpreted as an assent by the appellant that his act thus was negligent, and (3) that the assumption of risk by appellee, as an issue, was waived by appellant inasmuch as appellant failed to 'sustain the burden of proof,' and, further that he did not discuss or argue 'the specification that the verdict was contrary to law.'

The motion for a new trial questioned the giving of Instruction No. 1 at the request of appellee, and also the refusal to give Instructions 1, 2, 3, 4 and 9 as requested by the appellant. Appellee's Instruction No. 1, as given by the court follows:

'LADIES AND GENTLEMEN OF THE JURY, You are instructed that if you find for the plaintiff, that he is entitled to recover, it becomes your duty to assess his damages in such amount as the evidence shows will fairly compensate him for the injuries sustained as charged in the complaint, if any, and in arriving at this amount you may take into account the amount of physical pain and suffering, which he has already endured, if any, by reason of his injuries;

'Also you may consider his partially blinded condition if you find it to exist, the probable duration of his life and the loss of time from work, if any, caused by his said injuries and the loss or decrease in his earning capacity occasioned by such injuries, if any, and from all of the evidence in the case relating to his said injury and bearing upon his damages, assess such an amount as in the judgment of the jury will fairly compensate the plaintiff for the injuries so sustained not exceeding, however, the sum of $15,000.00 prayed for in the complaint.'

Defendants in objection to said Instruction No. 1 contends that it was inapplicable to the evidence in that no evidence tended to show plaintiff was partially blinded as a proximate result of any act of negligence or omission on the part of the defendant; that no evidence tended to show loss of time by plaintiff from work as a proximate result of an injury suffered by him and proximately caused by defendant's negligence; that no evidence shows plaintiff has suffered a loss or decrease in his earning capacity in the past as a proximate result of injury suffered by him and proximately caused by negligence on defendant's part; nor does the evidence disclose that plaintiff will be adversely affected in regard to future earning capacity due to any injury suffered and proximately caused by defendant's negligence; nor that evidence tended to disclose that plaintiff's loss of time and of earning capacity was due to the injury of the left eye, nor did the evidence disclose that the condition of plaintiff's right eye was affected by the acts of the defendant either directly or indirectly.

Appellant's further objections to said Instruction No. 1, requested by the appellee, pertains to the inference to the probable 'duration of the life of the plaintiff' in that, this misled the jury and was prejudicial to the defendant since it supported the assumption that the injuries which the jury may determine plaintiff suffered were caused by some act or omission on defendant's part, which assumption was not supported by the evidence, and, that the evidence does not support the charge that the defendant caused plaintiff to suffer injury that will probably continue during plaintiff's lifetime.

Appellee testified on direct examination, as follows:

'This question, Mr. Bowley, can you tell the jury just what was said to you by Mr. Leader before you started to pull on the head of the cycle?

'A. You mean when he told me to pull on the end of the hammer?

'Q. Yes.

'A. He said, 'Get hold of that damned thing and I will see if I can drive it out of there.

'Q. Where were you at the time?

'A. I was standing up and I laid down on my left shoulder and crawled underneath and got hold of it.

'Q. Mr. Bowley, did there come a time after June of 1955 when the vision of your left eye became impaired?

'A. Blind?

'Q. Yes.

'A. Yes.'

This and other evidence of probative value was sufficient to support our conclusion that the court committed no reversible error in the giving of plaintiff's tendered Instruction No. 1 to the jury.

As heretofore stated, defendant-appellant, charged error by the court in refusing to give appellant Instructions Nos. 1, 2, 3 and 4 with these comments:

'Each allegation relied upon by the appellee is based on the fact that appellee received an injury to his left eye by reason of appellant's conduct in striking on the head of the sickle, from being ordered into a dangerous position by appellant and from appellant's failure to supply goggles to appellee. It is appellee's contention that by reason of these acts of negligence a piece of cast iron or steel penetrated appellee's left eye. There is no evidence in the records to establish that appellant's negligent act caused a foreign body to be lodged in appellee's eye. The tractor, mower and all parts of the sickle are attracted by magnets, yet appellee's own medical witness testified that the foreign body that caused appellee's blindness was non-magnetic.

'On the basis of these facts, and every reasonable inference to be drawn from the...