Rietman v. Stolte

• Decision Date: 12 October 1889
• Docket Number: 13,843
• Citation: 22 N.E. 304,120 Ind. 314
• Parties: Rietman et al. v. Stolte
• Court: Indiana Supreme Court

22 N.E. 304

120 Ind. 314

Rietman et al. v. Stolte

No. 13,843

Supreme Court of Indiana

October 12, 1889

From the Vanderburgh Superior Court.

Judgment reversed, at the costs of the appellee.

P Maier, for appellants.

A. C Tanner and W. W. Ireland, for appellee.

OPINION

Olds J.

This is an action for damages resulting from an injury received by the appellee, Stolte, while at work for appellants loading timber upon a car. The complaint is in two paragraphs.

The first paragraph of the complaint alleges that the defendants, Henry Rietman and Charles Schults, are partners, doing business under the firm name of Rietman & Schults, and as such partners are running and operating a saw mill in Vanderburgh county, and are manufacturers of and dealers in lumber; that, on the 9th day of July, 1886, the plaintiff was in the employ of the defendants, working in and about their said mill; that under and by direction of the defendants, plaintiff was upon that day engaged in loading heavy timber from a wagon into a car for the purpose of transportation, and to lift said timber from the wagon to the car he used a crane belonging to the defendants; that attached to said crane, and as a part thereof, was an iron hook with which the timbers were grasped and held up while being lifted as aforesaid; that, on the day aforesaid, while engaged as aforesaid, and without any fault or negligence on his part, a heavy oak timber, while being raised as aforesaid, slipped from the hook and fell upon and crushed both of the plaintiff's feet, whereby he suffered and endured great mental and physical pain and agony for a long time, and was by reason thereof unable to perform any work or labor for eight weeks, and incurred large expense in and about being cured; that, at the time the injury was inflicted, plaintiff was using due care and handling said crane in a careful, prudent manner, and said timber slipped from the hook and inflicted said injury wholly because said hook was defective and unfit for use for such purpose, in this, it was worn and the teeth thereof were dull and broken, so that it did not and could not securely hold said timber while the same was being lifted as aforesaid, and permitted it to slip and fall, which defective condition was at the time known to the defendants, but wholly unknown to the plaintiff. Prayer for judgment.

The allegations of the second count are like the first, except instead of charging the appellants with knowledge of the defect in the hook, it alleged that the "defective condition was at the time of said injury wholly unknown to the plaintiff, but the same might have been known to the defendants by the exercise of ordinary care."

To each paragraph of the complaint a demurrer was filed for want of sufficient facts. The demurrer was overruled, and exceptions taken. The issues were formed by an answer in general denial.

The jury returned a general verdict for the plaintiff, and assessed his damages at $ 175.

Interrogatories were submitted to be answered by the jury, in case they found a general verdict, and the jury returned the following answers to interrogatories:

"1. For what particular work was plaintiff employed by defendants?

"Ans. He was employed for common labor.

"2. Could not plaintiff, by the use of ordinary diligence, have seen the defect in the hook fastened to the crane, if there was any?

"Ans. Yes, he could see it if he had looked at it.

"3. Was the hook defective which was attached to the crane?

"Ans. It was.

"4. If you answer the preceding interrogatory in the affirmative, will you state in what the defect consisted?

"Ans. The defect consisted in its being a dull hook.

"5. Did not plaintiff have as good an opportunity to see the defect, if any there was in the hook, as the defendants?

"Ans. Yes.

"6. How long did the plaintiff work with the crane to which the hook claimed to be defective was attached?

"Ans. About three weeks.

"7. Who told plaintiff to go on the car the morning he was hurt?

"Ans. Schaefer.

"8. Did defendants have any knowledge of any defect in the hook attached to the crane, used to load the car, the morning plaintiff was hurt?

"Ans. The defendants did not know of the defect at the time, but the defendants ought to have known it.

"9. If they had knowledge, how did they get it?

"Ans. They did not know it, but ought to have known it.

"10. Could not the plaintiff have avoided being injured had he used ordinary care and caution?

"Ans. No.

"11. In what capacity or position was John Schaefer employed?

"Ans. As a common laborer.

"Ernst Deusberg, Foreman."

The defendants filed their motion for judgment upon the answers to interrogatories notwithstanding the general verdict, which was overruled, and exceptions taken, and this ruling of the court is one of the errors assigned.

It is a well settled principle, which has been adhered to by this court, "that an employee who knows or by the exercise of ordinary diligence could know, of any defects or imperfections in the things about which he is employed, and continues in the service without objection, and without promise of change, is presumed to have...