Romona Oolitic Stone Co. v. Shields
| Decision Date | 25 May 1909 |
| Docket Number | No. 21,246.,21,246. |
| Citation | 88 N.E. 595,173 Ind. 68 |
| Parties | ROMONA OOLITIC STONE CO. v. SHIELDS. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Morgan County; Joseph W. Williams, Judge.
Action by Otis Shields, by his next friend, John Shields, against the Romona Oolitic Stone Company. From a judgment for plaintiff, defendant appeals. Affirmed.Duncan & Batman and Edenharter & Mull, for appellant. Rufus H. East and Renner & McNutt, for appellee.
Appellee brought this action in the Monroe circuit court to recover damages for a personal injury sustained while in appellant's service. The venue was changed to the Morgan circuit court, where a trial resulted in a verdict and judgment for $7,000 in favor of appellee. Appellant charges the Morgan circuit court with error in overruling: (1) Its demurrer to the complaint; (2) its motion for judgment on the answers of the jury to special interrogatories notwithstanding the general verdict; and (3) its motion for a new trial. Appellant's demurrer to the complaint was overruled by the Monroe circuit court. Hence the first assignment of error, when tested by the record, presents no question for review. Chicago, etc., R. Co. v. Walton, 165 Ind. 642, 74 N. E. 988;Smith v. Smith, 106 Ind. 43, 5 N. E. 411;Indiana, etc., R. Co. v. McBroom, 98 Ind. 167;Evansville, etc., Co. v. Lavender, 7 Ind. App. 655, 34 N. E. 847; Ewbank's Manuel, § 127. It is not deemed necessary or proper to set out the interrogatories and answers thereto at length, since it is manifest that the special facts found by the jury are in harmony with the verdict. There is no legal or plausible ground for the insistence that the court erred in overruling appellant's motion for judgment on the special answers of the jury notwithstanding the general verdict. Appellant's motion for a new trial alleged that the damages assessed by the jury are excessive, the verdict not sustained by sufficient evidence and contrary to law, and that the court erred in giving and in refusing to give certain instructions, and in admitting and in excluding certain testimony. Appellee was engaged with others in placing a large stone 11 feet long and about 18 inches square in a lathe by means of a hand derrick when injured. A part of the machinery of the derrick consisted of a metal wheel to which a cylinder and a crank were attached, and this wheel had cogs or notches in which a piece of metal, called a “dog,” worked so as to hold the load being hoisted at any given point. The stone was suspended from the derrick, but not quite high enough to be let down into the lathe, and they were about to crank it up a little higher, when the dog bent and the stone dropped, suddenly causing the crank to revolve with great speed and force, and appellee was struck on the top of the head by the revolving crank and seriously injured. It was charged in the complaint that this metal dog was made of soft iron and was not of sufficient strength to hold safely the lead on said derrick or to do safely the work required of it by appellant, and that appellant knew the capacity of said derrick did not exceed 2,000 pounds, and with such knowledge knowingly overloaded the same and suffered and permitted it to be used to lift said large stone, weighing 6,000 pounds.
Appellant's first contention is that the evidence fails to show notice to it of any defect in the derrick or knowledge that its capacity was insufficient to sustain the weight placed upon it at the time appellee was injured. The stone suspended from the derrick at the time of the accident was 11 feet long and about 18 inches square, and contained between 24 and 25 cubic feet. Witnesses testified that each cubic foot of the stone would weigh from 160 to 170 pounds, and the total weight of the stone was about 4,000 pounds. Appellant rests its defense chiefly upon the ground that the derrick was doing its ordinary work and was of sufficient strength for the purpose. If the derrick was provided and intended to be used in handling stones of the size and weight above stated, appellant was bound to know that it was suitable and reasonably safe for the purpose. The superintendent in charge of the plant testified that the derrick had been used to lift stones heavier than this with his knowledge, and that he knew this stone was being placed in the lathe by means of the derrick and made no objections. There was no evidence that any expert opinion had been sought, or examination made, as to the capacity of the derrick prior to the accident; but in a few instances it was subjected in actual use to great burdens until it finally gave way. Skids were formerly used to support large stones while being placed in the lathe, because, as one of appellant's witnesses said, they were “a little bit afraid of the derrick,” but, becoming gradually bolder, they undertook to handle the large columns wholly with this derrick. The derrick was built about six years before the accident by Charles Witsell, a blacksmith, for a former owner of the quarry. He said it was a small derrick and to be used in emergencies, when the traveler was busy, to handle small stone seven feet long and five to eight inches in thickness, weighing from 1,000 to 1,500 pounds, and was not intended to handle any larger stones. The dog which bent was of round iron three-fourths of an inch in thickness and eight or nine inches long, and was the one put into the derrick at the time of its construction. Whitsell placed the capacity of the derrick at 1,500 pounds. There was other evidence to the same effect. Appellant questions the worth of some of this evidence, but in our opinion the witnesses were competent, and their opinions were confirmed by the physical fact that the derrick did break down under the weight to which it was subjected. The evidence was sufficient to sustain the charge of negligence preferred in the complaint. Consolidated Stone Co. v. Morgan, 160 Ind. 241, 66 N. E. 696.
It is next urged that appellee was guilty of contributory negligence in...
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