Parry Mfg. Co. v. Eaton

• Decision Date: 17 January 1908
• Docket Number: No. 6,144.,6,144.
• Parties: PARRY MFG. CO. v. EATON.
• Court: Indiana Appellate Court

41 Ind.App. 81

83 N.E. 510

PARRY MFG. CO.

v.EATON.

No. 6,144.

Appellate Court of Indiana.

Jan. 17, 1908.

Appeal from Superior Court, Marion County; Jas. M. Leathers, Judge.

Action by James C. Eaton, by his next friend, against the Parry Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.Joseph W. Hutchinson and Wm. A. Ketcham, for appellant. Jno. S. Weaver, for appellee.

COMSTOCK, J.

The plaintiff, an infant, by his next friend, Edward Eaton, brought this action against the Parry Manufacturing Company, a corporation duly organized and doing business under the laws of the state of Indiana, to recover damages for personal injuries alleged to have been caused by the negligence of the appellant. The second amended complaint, and upon which the cause was tried, was in one paragraph, and is substantially as follows: That on or about the - day of April, 1903, plaintiff was in the employ of the defendant in its buildings situated on South Illinois, Henry, and other adjoining streets in the city of Indianapolis, where it was engaged in the manufacturing and selling of buggies and other vehicles. That a short distance west of Illinois street, running north from Henry street to the entrance of one of defendant's buildings, there was a way about 10 or 12 feet wide between two of the said buildings facing on Henry street which was the way of ingress and egress of the employés of the defendant to and from the entrance of said buildings at the north end of said space or way. That the buildings facing Henry street and on the east side of said way were three or more stories high, and at a third story window on the side of it facing said way were two iron window shutters. On the inside of each shutter, and on the outside when the shutters were open, about the middle of each and attached to each, was an iron socket, or support. Said shutters were open, and there was an iron bar about 1 1/2 inches wide, a half inch thick, and about 6 or 7 feet long across the window and the shutters on either side, with its ends resting in the sockets of said shutters, which had been so placed by defendant for the purpose of holding said shutters open. That there was nothing about said sockets to prevent said bar from slipping out of them, and said bar was in no way fastened to said building, nor to said shutters, nor to said sockets, so as to prevent it from slipping out of said sockets, nor falling in case it should slip out of them. That the action of the wind would move said shutters backward and forward, and anything which worked them backward and forward tended to work said bar out of said sockets, said bar and sockets not preventing the movement of said shutters. The defendant placed said sockets on said shutters and said bar in said sockets negligently and carelessly, then and there knowing that said condition was dangerous. That the plaintiff and a large number of other employés of defendant passed along and under the window at which said bar was placed, in the regular course of their work, and that said bar was liable to slip out of said sockets and fall at any time and injure or kill this plaintiff and such other employés while they were so passing beneath said window. That the plaintiff did not know that defendant had placed said sockets on said shutters and said bar in said sockets on said shutters, and had been negligently and carelessly placed there, and that the condition was dangerous, and by using ordinary care and diligence could not have so known, and did not know, that said bar was liable to slip out of said sockets and fall at any time, and by using ordinary care and diligence could not have so known. That said plaintiff did not know that there was nothing about said sockets to prevent said bar from slipping out of them, so as to prevent it slipping out of said sockets, nor from falling in case it should slip out of them, and that by using ordinary care and diligence he could not have known said facts. That the defendant negligently and carelessly allowed said bar to remain in said sockets and said sockets on said shutters, knowing, or by using ordinary care and diligence could have known, that said bar was liable to slip out of said sockets at any time and fall and injure or kill this plaintiff and said other employés while passing beneath said window in going to and from their work and while in the regular course of their work. That about 1 o'clock of said date, at the end of the noon hour, as plaintiff was going through said way to the entrance of defendant's building at the north end thereof to commence work therein said bar slipped out of said sockets, and fell and struck plaintiff on the head (describing injuries for which he seeks damages). Demands judgment for $10,000. The defendant's demurrer for want of facts was overruled by the court, and the cause was put at issue by general denial. A trial by jury resulted in a verdict and judgment in favor of appellee for $600. The errors assigned are the action of the court in overruling appellant's demurrer to the complaint and the motion for a new trial.

After both plaintiff and defendant had rested, and the plaintiff had rested in rebuttal, and the defendant had requested the court to instruct the jury to find for the defendant, the plaintiff was permitted, over the objection of the appellant, to amend his second complaint as follows: “That the plaintiff did not know that the defendant had placed sockets on said shutters, and said bar in said sockets had been negligently and carelessly placed there, and that the condition was dangerous, and by using ordinary care and diligence could not have so known, and did not know, that said bar was liable to slip out of said sockets and fall at any time, and by using ordinary care and diligence could not have so known. That said plaintiff did not know that there was nothing about said sockets to prevent said bar from slipping out of them, and that said iron bar was in no way fastened to said building, nor to said shutters, so as to prevent it from falling in case it should slip out of them, and that by using ordinary care and diligence he could not have known said facts. That plaintiff did not know, and that by using ordinary care and diligence could not have known, that said bar had been negligently and carelessly placed in said sockets by defendant, and had been left by defendant so negligently and carelessly placed in said sockets.” To which action of the court defendant excepted. It is claimed that this was an irregularity in the proceedings of the court, which prevented defendant from having a fair trial, upon permitting said amendment to be made in not reswearing the jury to try the case upon the complaint as so amended, and that there was error of law after said amendment had been made in permitting the plaintiff, over the defendant's objection, to be asked by his counsel certain questions relating to his knowledge of the manner in which the shutters were fastened when open, how the iron bar was held across the window, and other questions intended to show plaintiff's knowledge or ignorance of the danger hidden or apparent at the time and place where he received his injury. Appellee was cross-examined by counsel for appellant as to this supplemental testimony. The right to amend pleadings is given to the trial court, the exercise of which is subject to be reviewed by the appellate court. Sections 345-397, Burns' Ann. St. 1901; sections 342-394, Horner's Ann. St. 1901. Such amendments may be made after the evidence is heard. The issues were not changed by the amendment, nor does it appear that appellant was misled, or that its rights were prejudiced thereby. Citizens' Street R. v. Heath, 29 Ind. App. 399, 62 N. E. 107;Toledo, etc., R. Co. v. Stephenson, 131 Ind. 203, 30 N. E. 1082;La Plante v. State ex rel., 152 Ind. 85, 52 N. E. 452;Judd v. Small, 107 Ind. 398, 8 N. E. 284;Burns v. Fox, 113 Ind. 205, 14 N. E. 541;Hay v. State ex rel., 58 Ind. 337;Wabash, etc., v. Morgan, 132 Ind. 430, 31 N. E. 661, 32 N. E. 85;Chicago, etc., v. Hunter, 128 Ind. 213, 27 N. E. 477;Bever v. North, 107 Ind. 544, 8 N. E. 576. It does not appear that a request was made to have the jury resworn. It has been held that without such request no question is presented. Indianapolis Street Ry. Co. v. Fearnaught (Ind. App.) 82 N. E. 102.

Appellant concedes that, if the court was authorized to allow the amendment, no question is presented by the first error assigned. Appellant discusses the refusal of the court to give instruction 11, requested by it, and the giving of instructions 9-11 and 13. The following is the part of instruction 9, to which objection is made: “It is incumbent upon the plaintiff to show in this case, before he is entitled to recover, that the risk of the defect or hazard, if any, whereby he claims to have been injured, was not knowingly assumed by him.” It is insisted: That it eliminated from the consideration of the jury that element of plaintiff's case which required him to prove that he did not assume the risk. That the question is, not did the plaintiff knowingly assume the risk, but did he know and appreciate the danger? That if he knew and appreciated the danger, then he assumed the risk, whether he understood his contract of employment and the relation he sustained to his employers with reference to the assumption of risk or not. Earlier in the instruction than the part set out it is stated that the employé assumes all risk reasonably incident to the service and as far as the hazards thereof are obvious and open; that he is held in law to assume the risks that are incident to the employment, of which he has knowledge, or of which, in the exercise of reasonable precaution, he ought to have knowledge. The objections made to a part of the instruction are not well taken when the entire instruction is read. In instruction 11 the court told the jury that the plaintiff must prove by a...