Mellette v. Indianapolis Northern Traction Co.

• Citation: 45 Ind.App. 88,86 N.E. 432
• Decision Date: 08 December 1908
• Docket Number: No. 6,187.,6,187.
• Parties: MELLETTE v. INDIANAPOLIS NORTHERN TRACTION CO. et al.
• Court: Indiana Appellate Court

45 Ind.App. 88

86 N.E. 432

MELLETTE

v.INDIANAPOLIS NORTHERN TRACTION CO. et al.

No. 6,187.¹

Appellate Court of Indiana, Division No. 1.

Dec. 8, 1908.

Appeal from Circuit Court, Cass County; John S. Lairy, Judge.

Action by Peter Mellette against the Indianapolis Northern Traction Company and others. From a judgment for defendants notwithstanding the general verdict for plaintiff, plaintiff appealed. Affirmed.M. Winfield and Geo. A. Gamble, for appellant. J. A. Van Asdol, McConnell, Jenkines, Jenkines & Stuart, and Myers & Yarlott, for appellees.

HADLEY, J.

Appellant sued appellees for injuries received while engaged in work as their employé. Trial was had and a general verdict returned for appellant, together with answers to interrogatories. Upon motion judgment was rendered for appellees upon the answers to interrogatories notwithstaning the general verdict. The only question we shall consider is this ruling of the court below.

The complaint is in two paragraphs, each of which states the facts to be that appellant was employed as a bridge foreman in the construction of bridges for appelles; that at the time of the injuries complained of appellant, with a crew of men, was constructing a bridge and trestle which were about 30 feet high; that on the 14th day of January, 1904, while said bridge and trestle were in process of construction, the weather became very cold, and much rain had fallen the day before, on account of which the ground at the place where said trestle and the timber and tools used in the construction thereof became frozen and covered with ice, causing the premises and all of the timbers and tools and appliances used in the construction of said bridge to be and remain in a slippery condition, rendering it difficult to be upon and about said bridge and trestle and to handle the timbers and put them in position, causing such tools and appliances to be difficult to handle, altogether causing it to be hazardous to work upon said bridge and trestle and in placing the heavy timbers and other materials in proper position, which unsafe and hazardous condition was unknown to appellant and could not be seen by appellant, as the ice and slippery condition was hidden from view and concealed by a heavy fall of snow; that the attention of appellees was called to said unsafe condition, and that it was hazardous, on that account, for appellant and his crew working with him in said construction to work in and about the construction of said bridge and trestle at that time; that appellees ordered and directed that appellant and his crew proceed in the work of constructing said bridge and trestle-work; that said order and direction was a careless and negligent order, in that, as aforesaid, it was dangerous to appellant and others working with him to be in and about said bridge using the tools and appliances and placing the heavy timbers in position; that while working in obedience to said order on said 14th day of January, and while in the line of his duty he was standing upon said bridge and upon a timber that was being moved by one of the men working with him, said timber, by reason of the slippery condition, slipped and fell and precipitated him to the ground 30 feet below, whereby he was injured; that said co-employés were working upon said bridge under the instructions of said appellees; that said order and instructions were negligent and careless, in that appellees should have ordered and instructed the men to suspend work until the ice and said slippery condition had been removed; that said acts of said co-employés were in obedience to said instructions, and not otherwise, and by reason of said acts appellant was thrown off the bridge and injured; that said injuries were received directly and on account of the acts of said co-employés while thus engaged in the construction of said bridge, acting in strict obedience to the orders of said appellees. The amended third paragraph contains substantially the same averments, except that it did not aver that appellant had no knowledge of the icy and slippery condition, but it averred that said icy and slippery condition was hidden from view by the snow, and also that appellant obeyed said order and instructions of the appellees without knowing and appreciating the dangers and hazards in prosecuting the work under the conditions as existed at that time, and that the order recited in the first paragraph was a careless and negligent order.

The answers to the interrogatories show that appellant had been in the employ of appellees as foreman of a crew of bridge carpenters engaged in the construction of bridges continuously since June, 1903; that he had charge of the construction of the trestle where the injury was sustained, the men under him, the manner of doing the work, and the method of handling the timber in constructing the same; that prior to January 14, 1904, the date of the injury, said employés working with appellant and under his direction hoisted and stacked on top of said trestle dimension lumber and stringers; that at the time said lumber and stringers were so hoisted they were covered with ice; that there was a slight rainfall followed with sleet and snow and severe cold on the afternoon and night of January 13, 1904; that appellant, with other members of his crew, was working in the locality of said trestle on January 13th, and each of them on said January 13th knew of said rainfall, sleet, and snow; that said rain, sleet, and snow covered the timbers, stringers, and trestle, and rendered them icy and slippery; that said icy and slippery condition of said trestle and timbers rendered it dangerous for men to work thereon on the morning of January 14th; that the icy, slippery, and dangerous condition of the trestle and timbers was produced solely by a change in weather conditions which prevailed on the afternoon and night of January 13th; that on the morning of January 14th the thermometer indicated zero weather; that on said morning two of the employés, before going to work on the trestle, notified appellant that it was not safe, but was dangerous, to work on the same; that the workmen, under the orders of appellant, swept the snow off the trestle before attempting to put the stringers in position; that appellant a short time before his injury went up on top of the trestle; that, when he reached the top of the trestle, the men were engaged in shifting a stringer into position; that said stringer at the time was covered with ice; that appellant, upon reaching the top of the trestle, took his position on the stringer that was being shifted into position, and his injury was caused by said stringer slipping and falling; that the icy and slippery condition of the trestle and timbers thereon were open and obvious, and any one possessing good eyesight, standing on the top of said trestle, could readily have observed these conditions on the morning prior to appellant's said injury after the snow was removed; that appellant and appellees had equal opportunity of knowing the icy and slippery condition of the timbers and trestle, and appellant had as much information touching the condition of said timbers and trestle on said morning, and every opportunity of knowing of such conditions on said morning and the liability of said timbers to slip and fall as appellees had; that Hugh Bronson, a timekeeper and supply man of appellees, delivered to appellant on the morning of January 14th an order as follows: “There are no new orders. The old order still stands. Go ahead and push the work on the trestle on the island”-that said Hugh Bronson had been in the habit prior to the said 14th of January of bringing out the orders from the headquarters of the appellees as to...