Wolf v. The Big Creek Stone Company

• Decision Date: 21 September 1897
• Docket Number: 18,144
• Citation: 47 N.E. 664,148 Ind. 317
• Parties: Wolf, Administratrix, v. The Big Creek Stone Company
• Court: Indiana Supreme Court

47 N.E. 664

148 Ind. 317

Wolf, Administratrix, v. The Big Creek Stone Company

No. 18,144

Supreme Court of Indiana

September 21, 1897

From the Monroe Circuit Court.

Affirmed.

John R East, R. G. Miller, J. E. Henley and J. B. Wilson, for appellant.

H. C Duncan and I. C. Batman, for appellee.

OPINION

Howard, J.

This was an action by appellant to recover damages for the death of her husband who, on August 23, 1890, was killed in the quarry of appellee by the falling of a derrick used to lift rock in the quarry. The jury returned a special verdict, being answers to interrogatories, upon which the court rendered judgment for the appellee.

It is contended that the judgment should have been for the appellant, and also that the court erred in overruling the motion for a new trial. The motion for a new trial was based upon an instruction directing the jury to return more definite answers to three interrogatories. Whether there was error in this we need not inquire, for the reason that even if the three answers were to be taken as originally returned, as appellant contends they ought to be, yet such answers, together with the remaining answers, over two hundred in number, would show such a state of facts as must preclude any recovery by appellant.

On the former appeal, Big Creek Stone Co. v. Wolf, 138 Ind. 496, 38 N.E. 52, the evidence was found to show that the deceased "had an equal, if not a better, opportunity of knowing the condition of the derrick" than the appellee. On this appeal the same state of facts is shown by the verdict of the jury.

From the verdict it appears, as said by Judge Coffey on the first appeal, that "the deceased, formerly owned the derrick, the breaking of which resulted in his death, using it in a quarry operated by himself. He sold it to the appellant * * * * and he assisted in putting it up."

The jury find that for four or five years he had been using the derrick in his own quarry, about three hundred yards distant from the quarry of appellee; and that but two days before the accident he had sold it to appellee, and assisted in erecting it in the place where it broke down. One of the braces of the derrick was set upon a ledge of rock, and the other was fastened to a stump. The deceased assisted in fastening them both, and knew of their condition before and after they were so fastened. At the time of the accident the employes were lifting a stone with the derrick,...