Standard Oil Company v. Bowker
| Decision Date | 04 April 1895 |
| Docket Number | 17,170 |
| Citation | 40 N.E. 128,141 Ind. 12 |
| Parties | The Standard Oil Company v. Bowker |
| Court | Indiana Supreme Court |
From the Lake Circuit Court.
The judgment is affirmed.
A. D Eddy and J. W. Youche, for appellant.
J. C Blacklidge, C. C. Shirley, B. C. Moon and T. J. Wood, for appellee.
The appellee, a servant of the appellant, sued for damages on account of personal injuries sustained while serving the appellant as an engineer.
The complaint alleged that the appellant supplied, of its own manufacture, a step-ladder to be used by the appellee in oiling, cleaning, repairing and operating the engine in his charge; that said step-ladder contained no visible defects or imperfections, but that it was so defectively constructed as to have occasioned the injury complained of; that its defects were in the fastening of the top step to the side supports with nails that were too small, and in driving such nails through such step and into the ends of the side supports, with the grain of the wood, so that such nails would easily become loosened and said side supports would draw apart; that having gone upon the ladder to oil the engine said nails did become loosened and permitted the parts of the ladder to separate and fall, thereby precipitating the appellee upon the fallen ladder and inflicting the injuries complained of.
One of the reasons stated in the lower court in support of the appellant's motion for a new trial, was that the court erred in overruling the appellant's motion to require the appellee to make more specific certain allegations of his complaint.
In presenting in this court the alleged error of the trial court in overruling the motion for a new trial, appellant urges the denial of its motion to require the complaint to be made more specific. Rulings upon demurrers and motions addressed to the pleadings and in the making up of the issues can not be regarded as proper parts of the trial and have no place properly in a motion for a new trial. Elliott's App. Proced., sections 347, 348, and cases there cited.
No question, therefore, is presented in this court upon that element of the motion for a new trial.
It is complained that there was no sufficient proof of the allegation of the complaint that prior to the occurrence complained of, the appellee was "in perfect health and sound physical condition." There was not only direct evidence upon the subject, but there were circumstances shown from which the jury might reasonably have inferred that the appellee possessed no considerable injury or impairment of health. However, if there were no such evidence, we are not advised of the value of that fact in support of the motion for a new trial upon the ground that the verdict was not sustained by the evidence. The significance of evidence or its absence, upon this question, was in determining the extent of the injury and not the existence of injury from the fall. That there was injury from the fall, there is no reasonable doubt upon the evidence. If the presence of prior ill-health or injury should have been considered by the jury, it was but to control the amount of the damages and not as denying damages altogether.
The alleged absence of such evidence is further urged in support of the contention that certain hypothetical questions, in which it was assumed that the appellee had been in good health prior to the fall, were improperly admitted. The presence of evidence, as we have suggested, tending to support the assumption, would be a sufficient answer to this contention. "The party has the right to the opinion of the expert witness on the facts which he claims to be the facts of the case, if there be evidence in the case tending to establish such claimed facts, and the trial judge ought not to reject the question because he may think such facts are not sufficiently established." Louisville, etc., R. W. Co. v. Falvey, 104 Ind. 409, 3 N.E. 389; Conway v. State, 118 Ind. 482, 21 N.E. 285.
If, however, there were no evidence tending to support the assumption, we would be required to hold the question not properly presented for decision. Reference is made in appellant's brief to witnesses, pages and lines of the record for the evidence to which objection is now urged, and in two instances we find no such evidence as indicated, and in the other instances we find no objection stated in the record to the questions now complained of. That counsel must point out the objectionable proceeding of the lower court, and that objection must appear to have been made to such proceeding in the lower court, are rules of practice of constant application by this court.
Counsel complain further that the trial court permitted hypothetical questions containing the assumption that the nails alleged to have drawn from the side supports of the ladder had been driven "with the grain" of the wood. The record discloses objections to the hypothetical questions pointed out, but the objections made in the lower court do not contain the particular objection here urged. We may say, however, as was said with reference to the question just considered, that there was evidence tending to support the assumption of the question now objected to. The ladder was before the jury and its construction exhibited, while at least one witness testified upon the subject. After having examined the ladder the witness answered the following questions:
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Standard Oil Co. v. Bowker
...141 Ind. 1240 N.E. 128STANDARD OIL CO.v.BOWKER.Supreme Court of Indiana.April 4, Appeal from circuit court, Lake county; J. H. Gillett, Judge. Action by Ernest S. Bowker against the Standard Oil Company for personal injuries sustained by plaintiff as an engineer in defendant's employ. From ......