52 Ind. App. 175

Osborn v. Adams Brick Co.

Decided October 29, 1912

Indiana Court of Appeals · decided 1912-10-29

1. Trial. — Verdict.—Answers to Interrogatories. — Motion for Judgment. — A motion for judgment on the answers to interrogatories can only he sustained where the facts thereby found are in irreconcilable conflict with the general verdict, p. 182. 2. Trial. — Verdict.—Answers io Interrogatories. — Presumptions.— Every reasonable presumption is indulged in favor of the general verdict, and nothing is presumed in favor of the answers to the interrogatories, p. 182. 3. Trial. — Verdict.—Ans-wcrs to Interrogatories. — Judgment.—To authorize a judgment on the facts found by answers to interrogatories, such facts must he sufficient to overcome any evidence legitimately admissible under the issues, p. 1S2. 4. Pleading. — Complaint.—Determination of Theory. — The theory of a complaint must he determined from its general scope and tenor, and not from fragmentary statements, detached parts or conclusions, and that theory which is most apparent and clearly outlined by the leading averments of the pleading will be adopted. p. 182. 5. Master ano Servant. — Injury to Servant. — Complaint.—Construction. — A complaint alleging that plaintiff was employed in defendant’s shale hank or pit as a common laborer or shoveler, that defendant’s shot-firer was discharged by defendant, and that defendant, knowing that the pit was unsafe, wrongfully and negligently ordered and directed plaintiff to go into such dangerous place and blast and loosen such shale and continue loading cars, does not show that xfiaintiff was employed as, or accepted the position of shot-firer, but that he was merely transferred temporarily from his emxiloyment as a shoveler to that of a shot-firer, p. 182. O. Master and Servant. — Inexperienced Servant. — Duty to Warn and Instruct. — Where the master requires a dangerous service at the hands of an inexperienced servant, it is the duty of the master to warn him and to give him such instructions as will enable him to avoid injury, unless both the danger and the means of avoiding it are apparent, p. 183. 7. Master and Servant. — Assumption of Bisk. — Work Outside Scope of Employment. — The servant’s implied assumption of risk, which is a part of the contract of hiring, is confined to the particular ■work or class of work for which he is employed, and if he is ordered temporarily to do other work, involving different or greater dangers than those incident, to the work within the scope of his employment, he does not, by obeying such orders, necessarily assume the risk incident thereto, p. 183. S. Master and Servant. — Hazardous Employment. — Assumption of Bisk. — One who enters upon an employment, which is from its nature necessarily hazardous, assumes the usual and ordinary risks and perils of such service, p. 184. O. Master and Servant. — Employment to Make Dangerous Place Safe. — Assumption of Risk. — One employed to do the work' of making a dangerous place safe, assumes the risks ordinarily incident to such employment p. 184. 10. Master and Servant.- — Assumption of Risk. — The risks assumed by an employe in any case are those ordinarily incident to the particular work covered by the contract of hiring, p. 184. 11. Master and Servant. — Assumption of Risk. — Right of Servant to Rely on Master Providing Safe Place to Work. — Employment to Make Dangerous Place Safe. — A servant may ordinarily assume that the master has provided him a safe place in which to work, and rely on that assumption, except as to defects and dangers which he may ascertain by ordinary care for his own safety; and while one who undertakes to make a dangerous place safe may not presume that the master has already done the work ho is employed to do, he does not assume all possible risks, but only those incident to such employment, p. 184. 12. Master and Servant. — Injury to Servant. — Work Outside Scope of Employment. — Assumption of Risk. — Where a complaint against the master for personal injuries proceeds on the theory that plaintiff was employed as a common laborer and while working as such was called upon by defendant to perform temporarily the duties of shot-firer after the discharge of defendant’s regular shot-firer, and alleges that plaintiff was assigned to such new duties after the regular shot-firer had reported to defendant that conditions in the place of work were unsafe and had refused to send the men back to work in¡ such place- unless he was first permitted to make the place safe, the rule as to assumption of risk, governing where one is employed to make a dangerous place safe, is not applicable, p. 185. 13. Master and Servant. — Injury to Servant. — Verdict.—Answers to Interrogatories. — Where the allegations of the complaint in a servant’s action for personal injuries showed that plaintiff was employed as a common laborer and while working as such was called upon by defendant to perform temporarily the duties of shot-firer in defendant’s shale pit, 'that it was a dangerous place in which to work, but appeared to plaintiff to be safe, that the danger was such that without long experience it was impossible for a person of ordinary prudence and foresight to discern it, that plaintiff had no experience and did not know or appreciate the danger, all of which defendant knew, and that defendant wrongfully and negligently ordered plaintiff to proceed to blast and loosen shale and to load cars in said dangerous jdace, and that in performing such work plaintiff was injured, a verdict for plaintiff is a finding that such allegations are true, so that a recovery by plaintiff is authorized unless the answers to interrogatories are in irreconcilable conflict therewith, p. 185. 14. Master and Servant. — Injury to Servant. — Work Outside Scope of Employment. — Dirty to Warn and Instruct. — Where defendant, knowing of the dangerous condition of its shale pit, and knowing that plaintiff was a common laborer and did not understand and appreciate such danger, ordered him, in an emergency, to take the place of shot-firer in such pit, and plaintiff was injured within a few minutes after beginning such duties, the defendant's failure to warn and instruct plaintiff as to the dangers was inexcusable, p. 186. 15. Master and Servant. — Injury to Servant. — Verdict.—Ansivers to Interrogatories. — Where the complaint in a servant’s action for personal injuries is on the theory that plaintiff was employed by defendant as a common laborer, and that he was ordered by defendant to perform temporarily the duties of a shot-firer in defendant’s shale pit, in the performance of which duties he was injured, a general verdict for plaintiff is not overcome by answers to interrogatories showing that plaintiff was given the position of, and proceeded to discharge the duties of, shot-firer in the place of a shot-firer who had been discharged, since such answers do not conclusively show that plaintiff was employed to take the position in any other sense or to any further extent than that charged in the complaint, p. 187. 16. Appeal. — Review.—Verdict.—Answers to Interrogatories. — In considering a motion for judgment on answers to interrogatories nothwithstanding the general verdict, all evidence admissible under the issues will be treated as actually in the record, and the court will indulge every reasonable presumption in favor of the general verdict and reconcile such answers therewith, if possible on any reasonable theory within the issues, p. 188. 17. Master and Servant. — Injury to Servant. — Verdict.—Answers to Interrogatories. — Where the complaint, in a servant’s action for personal injuries, alleged that plaintiff was a common laborer employed in defendant's shale pit, that defendant discharged its shot-firer for refusing to obey defendant’s order to have the men work in the pit while it was in a dangerous condition, and that defendant, knowing that the pit was unsafe, wrongfully and negligently directed plaintiff to perform the duties of shot-firer, with knowledge that plaintiff was inexperienced and did not know and appreciate the danger, answers to interrogatories showing that the shot-firer was discharged because of unsatisfactory work, though excluding the idea that he was discharged because he refused to obey orders as alleged in the complaint, do not negative the facts found by the general verdict, that defendant knew and plaintiff did not know the hidden dangers incident to the new duties to which pilaintiff was assigned, p. 180. 18. Appeal. — Review.—Judgment on Answers to Interrogatories.— Disposition of Cause. — Where, on appeal, the facts are complicated and close questions of law are involved, and reversible error is found in the action of the trial court in rendering judgment non obstante veredicto, a new trial will be ordered rather than judgment on the general verdict, pp. 189,190. 19. Courts. — Appellate Court. — Powers.—New Trial. — The Appellate Court has the power to order a new trial, and it is its duty to do so, where it appears that the ends of justice will be best subserved thereby, p. 190. 20. New Trial. — Rights of Parties. — The party against whom a general verdict has been rendered, on proper motion, has the right to have the trial court pass on the verdict before judgment thereon is rendered against him. p. 190.

Cited by 7 later decisions — most recently June 2005

7 state decisions

Relies on Shoner v. Pennsylvania Co. · Midland Railway Co. v. Dickason · Great Council v. Green

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1912-10-29

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¶1On Petition for Rehearing.

Felt, P. J.

¶218. On reexamination of the questions involved in this appeal we are satisfied with the conclusions announced in the original opinion, but we believe the mandate should be modified. Where a general verdict is returned in favor of one of the parties, and his adversary obtains judgment in his favor on the answers of the jury to interrogatories, notwithstanding the general *190verdict, this court cannot know, unless it he in exceptional cases, that a new trial would not have been granted the losing party on application, had the motion for judgment on the answers to the interrogatories been overruled.

¶319. In any event, this court has the power to order a new trial, and it is its duty so to do, where it appears that the ends of justice will be best subserved by so doing.

¶420. The court, in sustaining the motion for judgment on the interrogatories, granted appellee relief of a different and higher character than that obtainable by a motion for a new trial, and which, but for the error of the court, left no occasion or necessity for a new trial. But appellee should not on account of such ruling have judgment rendered against it, without on opportunity to retry the ease. The party against whom a general verdict has been rendered, on proper motion has the right to have the trial court pass on the verdict before judgment thereon is rendered against him.

¶5But for the action of the trial court in sustaining the motion for judgment on the answers of the jury to the interrogatories, appellee might have obtained a new trial on motion duly made for causes which may exist, and on which no court has passed judgment.

¶618. In a ease where the facts are complicated and close questions of law are involved, and in which this court finds reversible error in the action of the trial court in rendering judgment non obstante veredicto, the ends of justice will generally be best subserved by ordering a new trial, unless it be in exceptional cases where the facts specially found of themselves clearly indicate that the party who obtained the general verdict is entitled to judgment. Shoner v. Pennsylvania Co. (1892), 130 Ind. 170, 179, 28 N. E. 616, 29 N. E. 775; Brown v. Ohio, etc., R. Co. (1894), 138 Ind. 648, 657, 37 N. E. 717, 38 N. E. 176; Masterson v. Southern R. Co. (1908), 170 Ind. 296, 298, 80 N. E. *191505; Citizens St. R. Co. v. Reed (1902), 28 Ind. App. 629, 63 N. E. 770; Columbia Creosoting Co. v. Beard (1913), post 260, 99 N. E. 823.

¶7Applying the foregoing propositions to the facts of this case, we believe the ends of- justice will be best subserved by ordering a new trial.

¶8The petition for rehearing is therefore overruled, and it is ordered that a new trial be granted, with leave to amend the pleadings if desired, and for further proceedings not inconsistent with this opinion, and that the mandate of the original opinion be, and the same is modified accordingly.

¶9Note. — Reported in 99 N. E. 530, 100 N. E. 472. See, also, under (1, 2, 3) 38 Cyc. 1927; (4) 31 Cyc. 84; (5) 26 Cyc. 1384; (6) 26 Cyc. 1165; (7) 26 Cyc. 1221; (8) 26 Cyc. 1188; (9, 10) 26 Cyc. 1177; (11) 26 Cyc. 1182; (13, 15, 17) 26 Cyc. 1513; (14) 26 Cyc. 1165; (10) 38 Cyc. 1927; (18, 19) 3 Cyc. 454. As to assumption of risk as affecting an employe’s right to recover for personal injuries, see 97 Am. St. 884. As to the duty to warn or instruct servant, see 44 L. R. A. 33. As to the duty of a master to adopt rules to protect servant, or to warn him against dangers not reasonably to be apprehended, see 21 L. R. A. (N. S.) 89. As to instructing minor servant who is of insufficient age or capacity to comprehend dangers of employment as affecting master’s responsibility,' see 8 L. R. A. (N. S.) 284. As to the assumption of obvious risks of hazardous employment, see 1 L. R. A. (N. S.) 272. Servant’s assumption of risk of danger imperfectly appreciated, see 4 L. R. A. (N. S.) 990. As to the assumption of risk of dangers created by the master’s negligence, which might have been discovered by the exercise of ordinary care on the part of the servant, see 28 L. R. A. (N. S.) 1250. On the question of a servant’s right of action for injuries received in obeying a direct command, see 48 L. R. A. 753; 30 L. R. A. (N. S.) 436. As to servant’s assumption of risk in obeying orders to perform obviously dangerous work, see 4 L. R. A, (N. S.) 830.