Standard Forgings Co. v. Holmstrom

• Decision Date: 09 April 1914
• Docket Number: No. 8245.,8245.
• Citation: 58 Ind.App. 306,104 N.E. 872
• Parties: STANDARD FORGINGS CO. v. HOLMSTROM.
• Court: Indiana Appellate Court

58 Ind.App. 306

104 N.E. 872

STANDARD FORGINGS CO.

v.HOLMSTROM.

No. 8245.

Appellate Court of Indiana, Division No. 1.

April 9, 1914.

Appeal from Superior Court, Lake County; Virgil S. Ritter, Judge.

Action by Oscar Holmstrom, as administrator, etc., of Gotfried Wickstrom, deceased, against the Standard Forgings Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.Bomberger, Sawyer & Curtis and John H. Gillett, all of Hammond, for appellant. D. J. Moran, of Hammond, and C. E. Greenwald, of Gary, for appellee.

HOTTEL, J.

Gotfried Wickstrom, deceased, while in the employ of appellant, received injuries which resulted in his death. Appellee administrator brought suit against appellant, charging it with negligently causing said death. From a judgment therein in appellee's favor for $4,000, this appeal is prosecuted. The overruling of the motion for a new trial is the only error assigned and relied on for reversal.

The facts shown by the complaint and the evidence necessary to an understanding of the questions presented by the appeal are, in substance, as follows: Decedent was employed by appellant to help unload steel billets from a car on the siding near its plant. These billets were elevated out of the car by means of a crane. Decedent's work was to help place the billets in piles so that they could be elevated by such crane. Each of such billets would weigh from 500 to 800 pounds, and a crane load would be from 12,000 to 15,000 pounds. After such billets were piled, a chain tackle attached to said crane was placed under either end of the pile and hooked to the rim of the crane, thus making a sling for such load. Decedent and other workmen remained in the car to guide the load while it was being hoisted and to be ready, when it left, to continue their work in stacking and arranging other piles to be unloaded by said crane. On the 18th day of January, 1910, while decedent was engaged in the performance of his duties under such employment, he was severely injured, from which injuries he died six days later. Said injuries were caused by the breaking of said chain tackle, letting a load of billets fall against and upon decedent.

Several acts of negligence are charged in the complaint, but those relating to the questions here involved are the furnishing of a defective chain unsuited for the character of the work, and failure to properly inspect such chain.

[1] The act of the court in giving, and the refusing to give, certain instructions is first discussed by appellant. Instruction No. 4, given at the request of appellee, is objected to on the ground that it is contradictory in its statements, and told the jury that (we quote): “A servant does not assume the risk which arises from the negligence of his employer, and he has a right to believe that the master has performed his whole duty as required by law.” It is insisted that this instruction took from the jury the consideration of all dangers resulting from the negligence of the master, including those of which the servant had knowledge, either actual or constructive.

That part of the instruction just quoted, separated from the remainder thereof and standing alone, might be open to appellant's criticism; but, immediately preceding the language quoted, the jury were told: “It is also incumbent on the plaintiff to prove that his decedent Gotfried Wickstrom did not know of the dangers and risks to which he was subjected by the negligent act and omissions of the master as charged in plaintiff's complaint, and the burden is on the plaintiff to prove these matters by a fair preponderance of the evidence. This rule is called assumption of risk, and it is the law that a servant assumes the ordinary and usual risks of his employment, and ordinary and usual risks are those which are obvious to a person in the exercise of reasonable care.” The meaning of the language first quoted, which is objected to by appellant, becomes obvious when considered in connection with that last quoted.

[2] Generally speaking, the servant has a right to assume that the master has performed the duty which the law imposes on him in the matter of using reasonable care to furnish him a safe place to work, safe machinery,appliances, etc., and the dangers ordinarily incident to the work of a servant are not generally regarded as including those resulting from the master's negligence, because the fact that they are usually and ordinarily incident to such employment of itself carries with it the idea that such dangers are those which ordinary prudence cannot provide against, and hence are not the result of negligence. Such dangers are impliedly assumed by the employé's contract of employment, and, as against them, the employé, where of full age and in the enjoyment of all of his faculties, would not be heard to say that he did not know of their existence; and, while it is true, generally speaking, that the servant also assumes those dangers of which he has knowledge, actual or constructive, even though they be such as result from the master's negligence, yet this is so because of his taking employment with such knowledge, or because of his remaining in the employ of his master after he has such knowledge, and not because his contract of employment necessarily includes such dangers. On this phase of assumption of risk, if the part of the instruction already quoted needed anything further to make certain that the burden was on plaintiff to prove that his deceased did not know of the risk which caused his death, it was supplied by the closing paragraph of the instruction which is as follows: “If you find from the evidence that the plaintiff's decedent knew, or, by the exercise of reasonable care, could have known, of the defects, if any, and such defects caused the injury which resulted in decedent's death, then he cannot recover.”

The instruction, when read in its entirety, as the rules of construction require (see Nave v. Flack, 90 Ind. 211, 46 Am. Rep. 205;Joseph E. Lay Co. v. Mendenhall [App.] 102 N. E. 974, 977), shows that it was intended to cover and does cover both elements or phases of assumption of risk just indicated and was neither contradictory nor prejudicial to appellant. Indeed, the instruction was more favorable to appellant than the law warrants, because it prevented recovery by appellee, if deceased simply knew or might have known of the defects, without reference to his knowledge or appreciation of the dangers that might result from such defects.

[3] Complaint is also made of instruction No. 12. The part objected to is as follows: “You cannot presume that the next of kin have suffered pecuniary loss because of the death, but the pecuniary loss, if any has been sustained, must be proven; and, unless the next of kin, for whose use this suit is brought, were in the habit of claiming and receiving pecuniary assistance of the deceased, your verdict should only be for a nominal sum; but, if you find from the evidence that said next of kin were in the habit of claiming and receiving pecuniary aid from the deceased, then your verdict should be for the actual money loss that they sustained by reason of his death, provided you find the issues for the plaintiff.” The effect of the objection to this instruction is that it told the jury that if it found that the next of kin had been in the habit of claiming and receiving pecuniary aid from the deceased, that the finding of this fact alone would require it to return a verdict in appellee's favor for substantial, rather than nominal, damages.

We are of the opinion that the instruction is subject to the infirmity indicated, as well as others that might be pointed out.

[4] This action being for the death of a child brought by the administrator in behalf of certain next of kin, it was proper for appellee to show a foundation for recovery, not necessarily that such next of kin “ had claimed,” but that the deceased, during his life, had given them assistance by way of money, services, or other material benefits, and a finding by the jury that such facts had been proven would not authorize a recovery of substantial damages, unless it further found from the evidence a reasonable probability that such assistance in whole or in part would have continued but for such death. Tiffany, Death by Wrongful Act (2d Ed.) § 158. This latter element which was of controlling importance in the matter of determining the amount of recovery was entirely ignored in the instruction, and hence rendered its giving erroneous.

It is further insisted by appellant that the court erred in refusing to give certain instructions tendered by it to the effect that the beneficiaries, as shown by the evidence in this case, are all nonresidents of this state, and are residents of Sweden, and, as such, were not entitled to the benefit of section 285, Burns, 1908. Said instructions were based on the laws of Sweden relating to recovery of damages for wrongful death, and were properly refused for the reason, if no other, that such laws were neither pleaded nor proven, and hence such instructions were inapplicable to the issues and the evidence.

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