Peirce v. Oliver
| Decision Date | 10 June 1897 |
| Docket Number | 2,165 |
| Citation | 47 N.E. 485,18 Ind.App. 87 |
| Parties | PEIRCE, RECEIVER, v. OLIVER |
| Court | Indiana Appellate Court |
From the Montgomery Circuit Court.
Reversed.
C. A Schmettau, Clarence Brown and Bayless, Guenther & Clark for appellant.
Benjamin Crane and A. B. Anderson, for appellee.
Appellee brought this action to recover damages for a personal injury. The complaint is in one paragraph, and avers substantially that the predecessor of the appellant, receiver, employed one Earnst to have the care, repair, and inspection of bridges along the line of appellant railroad, and that he was authorized as bridge foreman to employ such bridge carpenters, helpers, and day laborers as might in his opinion be necessary to keep the bridges on the line of said road in repair; that said Earnst had the power and authority to employ, determine the compensation of, and to discharge such bridge carpenters and laborers; that on the 5th day of July, 1893, the appellee was employed by the appellant, through said bridge foreman Earnst, to assist as a member of the bridge gang in the repair of bridges on said road; that the appellee had never, prior to his said employment, worked in a bridge gang or in the repair or construction of bridges, and had no experience in such work, as the appellant and the said Earnst at the time well knew; that he was 22 years of age, and had had no experience in carpenter work or bridge building; that on the 20th day of July, 1893, appellee was engaged under the supervision and control of said Earnst, as such bridge foreman, in working on a certain bridge of appellant, being engaged in assisting in putting up sway braces upon piles for said bridge; that the center pile was out of line, and to force it into line with the other piles, the said Earnst and this appellee and one Farout put a jackscrew between the said center pile and one of the old parts of said bridge, and tightened the same so as to force said pile into line, and that said Earnst directed and ordered the appellee to go below where said screw was, and nail the sway brace to said piles, and that appellee thereupon asked the said Earnst if said jackscrew was all right and safe, and said Earnst replied that it was all right, and that he, said Earnst, would watch it and prevent it from falling upon appellee; that appellee, in obedience to the direction of said Earnst, then went below where said screw was at a point about six feet below said screw, and while preparing to nail said sway braces, placed his right hand upon a cross piece on the old work at a point about six feet below and immediately under said jackscrew, and that thereupon, without any fault or negligence on the part of appellee, the jackscrew fell upon appellee's right hand and severely and permanently injured the same. It is further averred that the said Earnst did not watch and guard said jackscrew as he promised and assured appellee he would, to keep the same from falling and slipping from its place, and upon the appellee, but negligently and carelessly suffered and allowed the same to fall upon appellee's hand, whereby he sustained the injuries aforesaid.
The errors assigned are the overruling of the demurrer to the complaint, overruling appellant's motion for judgment on the verdict, sustaining appellee's motion for judgment, and overruling appellant's motion for a new trial.
The principal questions to be determined upon this appeal are whether appellee was guilty of negligence proximately contributing to his injury, and whether Earnst and the appellee were fellow servants.
Upon the questions of contributory negligence and whether appellee and Earnst were fellow servants, the special verdict shows that J. E. Johnson was master of the bridges and buildings, and that Earnst was employed as bridge foreman to have charge of the construction of the bridge where the injury occurred; that on the 5th day of July, 1893, appellee, who was twenty-two years old, and inexperienced in carpenter work or bridge building, which appellant knew, was employed by Earnst to assist in building this bridge; that Earnst was authorized to employ, fix the compensation of and discharge men; that on the 20th day of July, 1893, the appellee, assisted by Earnst and another workman placed a jackscrew, weighing from sixty-five to seventy pounds, between the center pile of said bridge and a timber of the old bridge, and tightened the screw so as to force the pile into line; that prior to the setting of the screw by appellee and Earnst, appellee and one Farout had placed the screw between a pile of said bridge and a timber of the old bridge, and tightened the same to force the pile into line. The jury answered in one interrogatory that appellee and Farout placed the screw in position at the orders of Earnst, and in another that Earnst and appellee placed it in position; that the screw, when in place, was eighteen or twenty feet from the ground; that in order to fasten sway braces to said piles it was necessary for some one to go below the screw about ten feet; that Earnst directed appellee, after the last setting of the screw, to go below, and in answer to a question by appellee whether the screw was safe, Earnst answered, "Yes, it is all right; I will watch it;" that appellee, relying upon this statement of Earnst, went below to a point six feet below the screw, and placed his right hand upon a cross piece on the old bridge at a point about six feet below and under the screw; that the screw, by reason of being improperly and insecurely set between said old work and said pile, fell out and upon appellee's right hand while it was resting upon the said cross piece; that Earnst did not watch and guard said screw; that appellee could have gone below to nail on the sway braces by another and different route than the one he took.
The thirty-fifth, thirty-eighth and thirty-ninth interrogatories and answers were as follows:
In answer to other interrogatories, the jury found the extent of appellee's injuries. In so far as each of the above interrogatories call for a conclusion of the jury they cannot be considered in determining the sufficiency of the verdict. Board, etc., v. Bonebrake, 146 Ind. 311, 45 N.E. 470; New York, etc., R. W. Co. v. Grossman, 17 Ind.App. 652, 46 N.E. 546.
The complaint contains the general averment that the injury occurred without appellee's fault, and it also contains specific allegations as to the circumstances under which appellee was injured.
It is well settled in this State that a complaint which seeks to recover for injuries arising from negligence must aver specifically that the plaintiff was free from contributory negligence, or must state facts showing that his own negligence did not proximately contribute to the injury. It is also settled, that a general averment that an injury was inflicted without any fault or negligence on the part of the injured party is controlled by a statement of the specific facts and circumstances upon which the general averment is based. Ivens v. Cincinnati, etc., R. W. Co., 103 Ind. 27, 2 N.E. 134; City of Evansville v. Worthington, 97 Ind. 282; see Indianapolis, etc., R. W. Co. v. Johnson, 102 Ind. 352, 26 N.E. 200; Stuart v. New Albany Mfg. Co., 15 Ind.App. 184, 43 N.E. 961; Myers v. W. C. DePauw Co., 138 Ind. 590; Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156, 33 N.E. 355; Rietman v. Stolte, 120 Ind. 314, 22 N.E. 304; Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327, 27 N.E. 741.
The complaint does not proceed upon the theory that the employer of appellee negligently supplied unsafe machinery; but the facts pleaded clearly state, and the verdict shows that the injury of which appellee complains was caused by the manner in which the jackscrew was being used. It is not claimed that the injury resulted from an unsafe or defective jackscrew, but the cause of the injury was the improper use of a safe appliance.
It appears from the allegations of the complaint, and from the verdict that appellee assisted in putting the jackscrew in the place from which it fell and that he had some doubts about its safety. It must have fallen by reason of the manner in which it was put up, for there is no allegation that any appliance used was defective. In connection with this is the fact that when he did go below he took a position immediately beneath the jackscrew. It is not shown that this position was the only one he could occupy while doing the work. It required no special knowledge or skill for him to ascertain for himself whether or not the screw was in a safe condition before he went below. He had assisted in placing the screw in place, and believed it was not safe, he had ample opportunity to see for himself, and if, under these circumstances instead of investigating for himself he chose to rely wholly on the opinion of another, he did so at his own risk. Had prudence and care been observed by the appellee, believing as he did that the appliance was not safe, he would not have taken a position that would expose him to the danger of the screw falling on him. This is not a case where...
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