United States Cement Company v. Whitted
| Decision Date | 14 January 1910 |
| Docket Number | 6,746 |
| Citation | 90 N.E. 481,46 Ind.App. 105 |
| Parties | UNITED STATES CEMENT COMPANY v. WHITTED, BY NEXT FRIEND |
| Court | Indiana Appellate Court |
Rehearing denied March 10, 1910.
Transfer denied June 2, 1910.
From Lawrence Circuit Court; James B. Wilson, Judge.
Action by Harley Whitted, by his next friend, against the United States Cement Company. From a judgment on a verdict for plaintiff for $ 1,200, defendant appeals.
Reversed.
Elmer E. Stevenson, Thomas J. Brooks and William F. Brooks, for appellant.
McHenry Owen and Rufus H. East, for appellee.
Appellant is engaged in the manufacture of cement, and for this purpose maintains an extensive plant, comprising a number of buildings and a certain extent of grounds surrounding them. Among other buildings is one in which kilns are built, and in which the material out of which cement is manufactured is burned, and on the grounds about this building is a pool or ditch, which on the occasion giving rise to this action was filled with hot water. No provision for heating the kiln building was made by appellant, other than the fire in the kilns.
Appellee was engaged in the service of appellant, at work with other employes in the kiln building. A temporary wood fire was built in the building, for the purpose of keeping appellant's employes at work therein comfortably warm. Appellee went out of the building in search of fuel to keep up the fire. It was night, and he fell into a ditch of hot water and was injured. He brought this action to recover damages for the injury, predicated on the theory that appellant was guilty of negligence in maintaining on its premises the unguarded ditch of hot water.
The questions presented by the record for the decision of this court arise upon the sufficiency of the complaint to withstand demurrer, the right of appellant to a judgment in its favor on the answers to interrogatories, and the sufficiency of the evidence to sustain the verdict.
The point is made against the complaint that it fails by direct averment to show that the ditch of water was on the appellant's premises. The point is not well taken. It is directly averred in the complaint that "the ditch was constructed, maintained and kept by defendant, with full knowledge of all the dangers and defects thereof," and in the connection in which this direct averment is made, a person of common understanding must have known that the ditch referred to was filled with hot water, into which appellee fell.
The point is also made against the complaint that the facts averred failed to disclose that appellee was injured while in the discharge of any duty owing to appellant.
This point is not well taken. The complaint does aver that it was necessary "that he [appellee] go about the grounds in search of wood." This is the statement of an issuable fact, imposing the duty. The complaint was sufficient. The general verdict established every material fact alleged in the complaint in favor of appellee, except such as cannot be harmonized with the answers returned by the jury to the interrogatories, and in considering the answers to interrogatories and the general verdict all inferences, presumptions and intendments are to be indulged in favor of the general verdict, and none in support of the answers to interrogatories. Nor can the court look to the evidence to interpret answers to interrogatories.
The answers to the interrogatories returned in this case are not in irreconcilable conflict with the general verdict, and there was no error in overruling appellant's motion for judgment in his favor upon them.
The serious question presented by the appeal is whether the evidence is sufficient to sustain the verdict. While this court has no power to weigh evidence, it is essential to the plaintiff's right to a recovery in any case, not only that the complaint state facts sufficient to constitute a cause of action, but that he shall prove such facts by sufficient evidence. And while the weight of such evidence is not for this court to determine, its sufficiency is. Butterfield v. Trittipo (1879), 67 Ind. 338; Atlas Engine Works v. Randall (1885), 100 Ind. 293, 50 Am. Rep. 798; Cleveland, etc., R. Co. v. Wynant (1893), 134 Ind. 681, 34 N.E. 569; Wright v. Bertiaux (1903), 161 Ind. 124, 66 N.E. 900; Cleveland, etc., R. Co. v. Miller (1898), 149 Ind. 490, 49 N.E. 445; Habbe v. Viele (1897), 148 Ind. 116, 45 N.E. 783.
The charge of negligence made against appellant is that it maintained upon its premises a pool or ditch of scalding water, without sufficient guard, and into which appellee fell and was scalded. The injury complained of does not arise from wounds occasioned by the fall, but from burns and scalds inflicted by the hot water. So the gist of the wrong charged is the maintenance of the ditch or pool of hot water. The hot water created the danger and caused the injury.
It is not averred in the complaint, nor does it appear from the evidence, that the ditch itself was dangerous, or that but for the presence of the hot water in it appellant would be guilty of negligence in failing to maintain guards around it. Therefore, to establish appellee's case, the evidence must show...
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United States Cement Co. v. Whitted
...46 Ind.App. 10590 N.E. 481UNITED STATES CEMENT CO.v.WHITTED.No. 6,746.1Appellate Court of Indiana, Division No. 2.Jan. 14, 1910 ... Appeal from Circuit Court, Laurence County; James B. Wilson, Judge.Action by Harley Whitted, by his next friend, against the United States Cement Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.[90 N.E. 482]Elmer E. Stevenson, Thomas J. Brooks, and Wm. F. Brooks, for appellant. McHenry Owens and Rufus H. East, for appellee.RABB, P. J.The appellant is engaged in the manufacture of cement, and for this purpose maintains an ... ...