Rietman v. Stolte

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

120 Ind. 314

22 N.E. 304

Rietman et al.

v.Stolte.

Supreme Court of Indiana.

Oct. 12, 1889.

Appeal from superior court, Vanderburgh county; Azro Dyer, Judge.

Action by Theodor Stolte against Henry Rietman and Charles Schulte. Judgment for plaintiff. Defendants appeal.

P. Maier, for appellants. Tanner & Ireland, for appellee.

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 Schulte, are partners, doing business under the firm name of Rietman & Schulte, and, as such partners, are running and operating a saw-mill in Vanderderburgh county, and are manufacturers 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 alleges 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 answer in general denial. The jury returned a general verdict for the plaintiff, and assessed his damage 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? Answer. 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? A. Yes; he could see it if he had looked at it. (3) Was the hook defective which was attached to the crane? A. It was. (4) If you answer the preceding interrogatory in the affirmative, will you state in what the defect consisted? A. 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 defendant? A. Yes. (6) How long did the plaintiff work with the crane to which the hook claimed to be defective was attached? A. About three weeks. (7) Who told plaintiff to go on the car the morning he was hurt? A. 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...