The Pennsylvania Company v. Burgett
| Decision Date | 31 March 1893 |
| Docket Number | 819 |
| Citation | 33 N.E. 914,7 Ind.App. 338 |
| Parties | THE PENNSYLVANIA COMPANY v. BURGETT |
| Court | Indiana Appellate Court |
A Zollars, for appellant.
L. M Ninde and H. W. Ninde, for appellee.
OPINION
In the court below, appellee recovered judgment in the sum of three thousand dollars, in an action for personal injuries.
The first error discussed is that the court erred in overruling appellant's demurrer to the complaint.
After the formal parts of the complaint, averring the ownership and operation of the railroad and its appurtenant shops at Fort Wayne by appellant, and the employment of the appellee in said shops as a helper, and that the appellant was using in its shops a certain four-wheeled hand wagon loaded with a ton of iron, which the defendant was then and there hauling or driving near to where the appellee was carefully and diligently engaged in the discharge of the duties of his employment, the complaint then avers that said wagon was then and there worn out, weak, loose, out of repair and wholly unfit for the purposes for which it was being used by appellant, and that the king bolt of the wagon was loose, worn out, and the axles and wood around it were worn out and cut away from said king bolt, so that it could not hold the platform of said wagon steady or level;. that the wheels, hubs, spokes, and joints of said wagon were all worn out, shrunken and so out of repair that said wagon became and was then and there dangerous and unfit to be so used, and when it was turned, or the surface over which it was so hauled would be uneven, it would swing from side to side and become likely to upset; that the appellant knew, and, for a long time before the appellee became injured, it might have known, by the exercise of reasonable diligence, of all of said defects and unsafe condition of said wagon; and yet, that, with notice of said defects and the dangerous condition of said wagon, the appellant, on the 14th of March, 1887, carelessly, and without any regard for the safety of the life or limb of appellee or its other employes, hauled and was hauling and driving said wagon, so loaded with one ton of iron, past and near to the appellee, when said wagon, on account of its said worn out, weak and dangerous condition, as aforesaid, upset with said load of iron, and then and there and thereby said wagon and iron were thrown on the appellee, and broke his leg and otherwise injured him.
It is further averred that appellee did not know that the said wagon, so negligently driven and used near to appellee, as aforesaid, was out of repair, worn out, or in any way dangerous, or that the same would upset or fall upon him and throw said iron on him as aforesaid, but he avers that he was so injured without any fault whatever on his part.
It is earnestly insisted by the learned counsel for appellant, in an able and ingenious argument, that the complaint, the substance of which we have hereinbefore set out, fails to show actionable negligence on the part of appellant, and also fails to show that appellee was without contributory negligence.
We have carefully read the complaint, in the light of the objections urged thereto, and are of the opinion that the facts alleged in the complaint constitute actionable negligence.
The absence of an averment that the servants of appellant who were using the wagon were not the coemployes of appellee does not sustain appellant's contention. If, on the contrary, it appeared that they were coemployes, we are not prepared to say, under the circumstances stated in the complaint, that such fact would render the complaint bad. The general rule is that where a servant receives an injury occasioned, in part, by the negligence of the master and in part by the negligence of a coemploye, the servant, if without fault on his part, may maintain an action against the master for such injury. Boyce v. Fitzpatrick, 80 Ind. 526; Paulmier v. Erie R. R. Co., 34 N.J.L. 151; 2 Thompson on Neg., 981.
In view of the averments in the complaint, it was not necessary, in order to show that appellee was not guilty of contributory negligence, to state that he could not have known of the unsafe condition of said wagon, had he exercised care in observing what was about him.
It sufficiently appears, from the facts pleaded, that appellant was guilty of actionable negligence; that such negligence was the proximate cause of the injury, and the general allegation that appellee was without fault is not overthrown by the statement of any facts from which it is apparent he was guilty of negligence.
The only other error discussed is that the court erred in overruling appellant's motion for a new trial.
It is urged that the evidence fails to show negligence on the part of appellant, and affirmatively shows that whatever negligence there may have been was the negligence of appellee himself and his coemployes.
There are nearly four hundred pages of type-written testimony, and we take occasion here to state that the record is, in all respects, properly made, logically arranged, conveniently bound, thoroughly indexed and in excellent shape for examination. If the profession would, in all cases, see that the records were so well and conveniently constructed, the labor of the court would be facilitated.
We can not, within the limits of this opinion, undertake to set out all the evidence, or the substance thereof. The reading of the record discloses there is evidence tending to prove, among other things, that, at the time of the accident, the appellee was in the pursuit of his duties, following his wagon where, under the circumstances, helpers were accustomed to go, and where it was his duty to go; that in the shop where appellee was so employed, the appellant had certain shears used by its servants for the cutting of rods and plates of iron, to which shears the iron was transported from the streets through the shops, and from the shears to the forges; that the shears set a short distance north of a large door in the south side of the shop, through which these loads of material, on trucks or hand wagons, passed to the shears and out again; that the appellee's duty was to aid in transporting this iron, and, at the time he was injured, Grotham, the blacksmith he was helping, and appellee had hauled a load of iron to the shears and had it cut up and dropped on the opposite or west side of the shears, and that Grotham had taken hold of the tongue of his wagon and turned it around and was proceeding back again towards the door to go out of the shop; that the appellee's duties required him to assist in propelling the wagon when loaded, and to follow it out as it was taken away; that the employe, Dryer, who operated the shears, as soon as Grotham's load was cut up, proceeded to transport a wagon loaded with iron, containing about seven hundred pounds of rods, through said door to the shears, and had proceeded to about opposite the shears and then turned his wagon sharply to the left, bringing the front end of it directly towards the west, while the back end of it was swung around from south to east; that these rods extended over the back end of said truck some six to eight feet, and, as the back ends of the rods swung around, they were brought between Grotham's truck, as it was passing southward, and the appellee standing close upon it, and thus prevented him from following his truck to the door.
The Dryer truck was so worn out, and the king bolt and the axle and the wood attached to the axle around the king bolt were so worn and loose that it was insufficient to preserve the bolster and the platform in a level condition, and as this loaded truck was turned in the way described, the front axle was so changed in its relation to the bolster over it that it ceased to hold the bolster level or steady, and at that moment, on account of its unsafe and defective condition, the wagon upset, bringing the back end of the rods thereon against the appellee and causing the injuries sued for; that before the accident, appellant had notice of the defective condition of the wagon, and that appellee had no knowledge of its defective condition, and was without fault.
The evidence is, in many important particulars, contradictory, but, without further consideration of this branch of the case, it is sufficient to say, in conclusion thereon, that we are of the opinion that there is evidence in the record tending to support every material point in the case.
The only other question to which our attention has been invited relates to instructions given to the jury by the court on the trial.
Complaint is made of the first, second, fourth, sixth, seventh, and eighth instructions given by the court on his own motion, but as the giving of these instructions is not assigned as cause for new trial in the motion therefor, we will not specially consider any of them.
The court gave to the jury, in all, thirty-two instructions, of which fourteen were given at the request of appellant.
The instructions given were full and comprehensive, and, when considered as an entirety, correctly state the law applicable to the case, unless there should be found reversible error in one or more of them to which special reference is hereinafter made.
The seventh instruction, given at request of appellee, and of which complaint is made, is as follows:
"The plaintiff had a right, in the absence of knowledge to the contrary, to presume that the wagon conveying the iron that injured him was in reasonable repair, and in reasonably safe condition for the use to which it was applied, and even if the plaintiff had known, three weeks or more before...
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