Talge Mahogany Company v. Hockett

• Decision Date: 06 January 1914
• Docket Number: 8,159
• Citation: 103 N.E. 815,55 Ind.App. 303
• Parties: TALGE MAHOGANY COMPANY v. HOCKETT
• Court: Indiana Appellate Court

103 N.E. 815

55 Ind.App. 303

TALGE MAHOGANY COMPANY v. HOCKETT

No. 8,159

Court of Appeals of Indiana

January 6, 1914

From Hamilton Circuit Court; Meade Vestal, Judge.

Action by George M. Hockett against the Talge Mahogany Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

William D. Headrick and Samuel K. Ruick, for appellant.

George W. Galvin, for appellee.

OPINION

IBACH, J.

The court gave the following instruction: "If the plaintiff agreed with the defendant to make and put in place in defendant's boiler room a galvanized iron hopper, the size and approximate weight of which was known to defendant and as part of the contract the defendant agreed to construct a scaffold to be used by plaintiff and other workmen in erecting said hopper, and if defendant was informed as to the number of men that would be required to go upon said scaffold, and accordingly caused its workmen to construct the scaffold, and when completed the plaintiff and his helpers went upon said scaffold and while in the act of putting said hopper in place the scaffold broke and fell and plaintiff was thrown to the ground and sustained the injuries complained of, in the absence of other evidence of the cause of the fall of said scaffold, the jury may infer from the very fact that it broke and fell that the defendant was negligent in doing the work of its construction or in selecting the material therefor, if it appears that at the time the scaffold broke it was being used in the manner as contemplated by defendant."

The authorities do not support the contention that the court, in giving this instruction, invaded the province of the jury by stating that it might infer negligence from certain facts, if it found them to exist. The authorities cited by appellant hold only that it is error for the court to tell the jury what inference it shall, must, or ought to draw from certain facts. Where the judge tells the jury what inference shall, must, or ought to be made from indicated facts, he is clearly invading the jury's province, but where he tells the jury what inference may be drawn from a given state of facts he is not only not invading the province of the jury, but is exercising the prerogative and duty of the court. It was said by Mitchell, J., in the case of Wabash, etc., R. Co. v. Locke (1887), 112 Ind. 404, 421, 14 N.E. 391, 2 Am. St. 193, " While it is quite true that it is the duty of the jury, under proper instructions, to determine whether or not upon any given state of facts negligence ought to be inferred, it is nevertheless the duty of the court first to say whether, upon the facts most favorable to the plaintiff, negligence can be inferred. * * * 'The judge * * * has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be maintained distinct.'"

It is also urged that, in the absence of other evidence of the cause of the fall of the scaffold, it was wrong for the jury to infer negligence of the defendant in constructing the scaffold or in selecting material for it, from the mere fact that the scaffold broke and fell while being used in the manner contemplated by defendant; and that this instruction shifted the burden of proving negligence from the plaintiff and placed the burden of proving that it was not negligent on the defendant. After a review of many cases the court said, in Knoefel v. Atkins (1907), 40 Ind.App. 428, 436, 81 N.E. 600, "From a consideration of all the cases on the subject this general rule may be adduced: Where an accident happens resulting in the injury to a person or his property, and it is made to appear that all the instrumentalities causing the accident are under the exclusive control and management of the defendant, and the accident is such as ordinarily would not occur if due care was exercised by those who have control of such instrumentalities, and a duty to exercise such care is owing the plaintiff from the defendant, then proof of the circumstances of the accident and injury resulting therefrom casts upon the defendant the presumption of negligence and the burden of explaining the accident consistent with due care on his part." "In some cases a presumption of negligence arises from the very nature of the cause of the damage sustained. The meaning of the well-known maxim, 'res ipsa loquitur' is simply that the nature of the event is such that the immediate efficient cause of the injury itself declares its negligent character, giving rise to the presumption of negligence. * * * In the case of the falling of an article upon a person, or the rolling or hurling of one against him, or the toppling over of a structure, or of an article resting against a structure, the principle of res ipsa loquitur operates." 8 Ency. Evidence 871, 886. "The fall of a building, a scaffold, an elevator or other hoisting machinery, the...