The Salem-Bedford Stone Company v. O'Brien
| Decision Date | 24 February 1898 |
| Docket Number | 17,855 |
| Citation | 49 N.E. 457,150 Ind. 656 |
| Parties | The Salem-Bedford Stone Company v. O'Brien |
| Court | Indiana Supreme Court |
Rehearing Denied June 10, 1898.
From the Lawrence Circuit Court.
Affirmed.
E. K Dye, Elliott & Elliott and W. H. Martin, for appellant.
M. F Dunn and S. B. Lowe, for appellee.
The appellee recovered judgment against the appellant in the sum of $ 4,750.00, for personal injuries alleged to have been caused by the wheels of a heavy piece of machinery called a "traveler," said to have been used by appellant in a negligent manner in connection with the business of its stone quarry.
It is contended by counsel for appellee that there is no question before us, for the reason that the record does not show that any appeal was prayed or granted at the close of the trial. At the succeeding term of court, there was an attempt to correct this apparent omission, by the entry of a nunc pro tunc order. It must be said that this attempt is not shown to have been a very satisfactory one; but the order made, though crude, was perhaps sufficient for the purpose intended. Moreover, appellee has not caused the motion for this nunc pro tunc entry, nor the evidence upon which the court acted, to be brought up by bill of exceptions or otherwise, and we must presume that the evidence adduced was such as to justify the action of the court. Ellis v. Keller, 82 Ind. 524.
The first error assigned is, that the court overruled a demurrer to the complaint. On a former trial of the case, judgment was given appellee in the sum of $ 3,000.00. This judgment was reversed in the Appellate Court, Salem-Bedford Stone Co. v. O'Brien, 12 Ind.App. 217, 40 N.E. 430. On that appeal the complaint was held good. The complaint now before us is not substantially different from that on the former appeal, and we are of opinion that there was no error in overruling the demurrer to it.
The verdict was a special one, by answers to interrogatories, under the act of 1895, now repealed. Acts 1895, p. 248. Nearly 220 questions were prepared by counsel on both sides. So great a number of interrogatories seems to have been quite unnecessary, and hardly in accordance with the spirit of the act referred to. That statute required the finding, simply, of the facts essential to the decision of the issues involved. It is not to be wondered at that there may be some apparent confusion, or even contradiction, in the multitude of answers to interrogatories in the case at bar. But we do not think the verdict is shown to be so defective that no judgment could be rendered upon it, or, consequently, that a venire de novo ought to be awarded.
As to mere formal defects complained of, it does not appear that any objection was made to the verdict when it was received. The court should have had an opportunity to send the jury back to correct any such errors in the verdict. Chicago, etc., R. R. Co. v. Ostrander, 116 Ind. 259, 15 N.E. 227.
The third and fourth assignments of error, relating to the action of the court in entering judgment upon the verdict, may be considered together. From the answers returned by the jury to the interrogatories submitted to them these facts appear: On July 28, 1892, and previous thereto, the appellant was engaged in the business of moving heavy stone and loading the same on cars by means of travelers and other machinery, under direction of one Pearson, as superintendent, in full charge of the business, and with power to employ and discharge men. On July 4, 1892, appellee was employed by Pearson to work as a common laborer, and "scabble" stone, and continued in appellant's employment until his injury on July 28, 1892. It is found that appellee had no skilled knowledge of travelers, tramways, or other machinery, or the mechanism relating thereto, used in and around the place where he was employed, and that appellant knew that he had no such knowledge or experience; but that appellant and its said superintendent in charge had full knowledge of all these matters, and by inspection could have discovered the exact condition of the machinery before and at the time of the injury to appellee, but that no such inspection was made. From twenty-seven to 100 men were employed in and around appellant's works. Notwithstanding the fact that appellee was employed only as a common laborer and to scabble stone he was often sent up to work on one of the travelers, and on the cab running along the same. The jury find that this was a more hazardous place to work than on the ground. The traveler on which he was injured was about twenty-five feet from the ground, and rested upon trucks that moved along tramways on either side. The traveler extended north and south, and the...
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