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N, E. 1106; Nesbit v. Hanway, supra; Hodson v. Treat, 7 Wis. 263.
Appellants also bitterly complain of the action of the trial court in taking into account the question of taxes, rents and improvements. They insist that any question in that regard ought not to have been injected into this controversy, upon the theory that they are independent of appellee's right to redeem, and one that requires an entire separation in order to adjust the rights between appellants. Appellee tendered this issue. He was in a court of equity, and was entitled to have this issue, as between appellants and himself, determined. Gaskell v. Viquesney, 122 Ind. 244, 248, 23 N. E. 791, 17 Am. St. Rep. 364; Dailey V. Abbott, 40 Ark, 275, 282; Ruckman v. Astor, 9 Paige (N. Y.) 517. In Dailey v. Abbott, supra, it is held that “as long as the right of redemption exists, the mortgagor is entitled to rent, if the mortgagee is in possession, taking the rents and profits. The statute prolongs the mortgagor's right of redemption for one year after the sale. The purchaser at the sale takes the place of the mortgagee, and if he takes possession of the land before the period of redemption expired, there is no good reason why he should not be accountable for the rents and profits. On redemption he gets the purchase money with interest at ten per cent. His vendor occupies no better position. 2 Jones on Mortgages, § 1118." As between appellants, this issue was not tendered, but we see no reason why their rights might not have been adjudicated in this action, had they chosen to tender that 1ssue, upon the theory of preventing a multiplicity of suits, but as this question is not before us, we decline to further consider it.
Appellants, in their petition for a rehearing, complain because we did not consider the sufficiency of the evidence to support the special findings. In their original presentation of the case this question was not presented, and, not having been presented then, they are not entitled to raise it now and have it considered on a petition for a rehearing. Indiana Power Co. v. St. Joseph, etc., Power Co., 159 Ind. 42, 63 N. E. 304, 64 N. E. 468; Sunnyside, etc., Coke Co. v. Reitz, 14 Ind. App. 478, 39 N. E. 541, 43 N. E. 46.
Finding no reason for changing our former opinion in this case, the petition for a rehearing is overruled.
in defendant's service and in the exercise of due care; that the train on which plaintiff was working was a work and freight train, and that the injury occurred on a curve, where the engineer was on the inside of the curve, and where he could plainly see the train with which he collided; and that the engineer had full charge of such locomotive, which was on defendant's railway. Held, that such paragraph was not objectionable as merely alleging by way of recital, and not by averment, that G., the engineer, was in charge of the engine. 2. SAME-EVIDENCE.
In an action for injuries to a servant in a collision between two locomotives, evidence as to how many and who were hurt was competent as showing the force of the collision and the extent of the accident. 3. EVIDENCE-OPINION.
Plaintiff, a railroad fireman, claimed that he was injured in a collision between two engines, caused by the negligence of defendant's engineer. In answer to a question whether he knew of anything to prevent the engineer from seeing down the track prior to the accident, he answered that he did not know why he did not see the approaching train, that if he had been looking he could have seen the engine, and that he (plaintiff) could have seen if he had been on that side of the engine. Held, that plaintiff's answer was merely a statement that there was nothing to prevent the engineer from seeing the approaching locomotive, if he had looked, and was not, therefore, objectionable as an opinion of the witness.
(Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, 2151.] 4. APPEAL-EVIDENCE-HARMLESS ERROR.
Where, in an action for injuries to a locomotive fireman in a collision, there was uncon. tradicted evidence from which the jury could have fairly inferred negligence of defendant's engineer, defendant was not harmed by the introduction of a declaration of such engineer made 45 minutes after the accident, admitting that the accident was the result of his carelessness.
(Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $$ 4161, 4163, 4165.] 5. MASTER AND SERVANT-INJURIES TO SERVANT-ACTION-INSTRUCTIONS.
In an action for injuries to a locomotive fireman by the negligence of his engineer, the court charged Employers' Liability Act 1893, (Acts 1893, p. 294, c. 130) § 1, ci. 1, and instructed that if plaintiff was injured through any defect in the condition of defendant's ways, works, plant, tools, or machinery, as provided by such act, in that there was no provision for signaling trains or any telegraph or telephone, and that plaintiff, while in the exercise of due care and while in the service of defendant, was thereby injured, he was entitled to recover. Held, that such instruction was not objectionable as requiring plaintiff to exercise "due care, but in omitting the equally important factor of "diligence.” 6. SAME-FELLOW SERVANTS-INSTRUCTION.
Where, in an action for injuries to a locomotive fireman, defendant was liable for the negligence of the engineer in charge of the engine on which plaintiff was employed, as provided by Employers' Liability Act 1893 (Acts 1893, p. 294, c. 130), a requesteu instruction that plaintiff and such engineer were fellow servants and that if his injuries were caused by the engineer's neoligence, he could not recover, was properly refused. 7. TRIAL-INSTRUCTIONS_REFUSAL.
Refusal of instructions covered by the charge held not error.
[Ed. Note.-For cases in point, see pol. 46, Cent. Dig. Trial, 88 651-659.)
(39 Ind. App. 333)
OSBORN. (No. 5,796.) 1 (Appellate Court of Indiana, Division No. 2.
June 19, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERVANT-RAILROADS_COLLISION-COMPLAINT.
A fireman, injured in a collision between two locomotives, alleged that the collision was caused by the carelessness of the railroad's engineer, G., in charge of the locomotive on wbich plaintiff was working, while plaintiff was
1 Rehearing denied, 79 N. E. 1067.
Appeal from Circuit Court, Lawrence Coun- of his duties as hereinbefore set forth." ty; Jas. B. Wilson, Judge.
These averments fully meet the objection Action by John W. Osborne against the made. The grounds set out in the motion Southern Indiana Railway Company. From for a new trial are that the verdict was cona judgment for plaintiff, defendant appeals. trary to law; is not sustained by sufficient Affirrned.
evidence; errors in rulings on the evidence; Brooks & Brooks and E. C. Ritsher, for
in giving instruction No. 4 and in refusing to
give certain other instructions. appellant. H. P. Pearson, for appellee.
The following is substantially a statement COMSTOCK, P. J. Action for personal in
of the evidence material to a consideration juries received by appellee in a collision be- of the motion for a new trial: Appellee was tween two locomotive engines on appellant's
a locomotive fireman on appellant's engine railroad. Appellee was a fireman on one of No. 18, of which Raymond Gibson was the the engines. It was alleged that appellant engineer. At the time of the accident, the and its engineer in charge of the engine on engine with a caboose attached, in which which appellee was riding, were negligent in were the men of the pile driver crew, was not keeping a lookout and in running the en- running on the Sullivan branch of appellant's gine at a dangerous and excessive speed. railroad. This branch of the railroad had The coinplaint is in three paragraphs. The been in use for three or four months for haulfirst is under the employers' liability act,
Engine 18 left the main line and Burns' Ann. St. 1901, $ 7083, clause 4, and went on the branch between 6 and 7 a. m., is founded upon the negligence of the en- and had run about a mile and a half, and gineer in charge of the locomotive. The sec- while running about 20 or 25 miles an hour, ond is under the same clause of the same came in collision with engine No. 25, drawing statute but avers the negligence to have been several loaded coal cars. Engine 25 was that of one Coyl, alleged to have been in backing. The effect of the collision was to charge of the appellant's switchyard. The damage both engines. Immediately after the third alleged that the collision was brought collision the engines were apart about a rail's about by defects in the appellant's ways, length. No one testified as to the cause of works, etc. The cause was put at issue by the engines parting; whether one or both general denial, a trial had by jury and a ver- were reversed, or not. Appellee was thrown dict returned in favor of appellee for $500. down in the gangway of the engine, the coal The appellant relies for reversal upon the ac- in the tender falling on him. It was from tion of the court in overruling its motion for 20 to 45 minutes before appellee was relieved a new trial and in overruling its demurrer from the coal. He received injuries which for want of facts to the first paragraph of the were described by himself and others. He complaint.
was not able to work for several weeks. He In support of its demurrer to this par- received permanent injuries. At the time of agraph appellant claims that inasmuch as it the trial he was a locomotive fireman on the is based upon the theory of the negligence of Monon. The only persons to receive orders Gibson, the engineer, it should aver that he for the running of the train were the conwas in charge of the engine; that this fact ductor and engineer. There was no telis only made to appear by recital. Among egraph or telephone line on the
line on the Sullivan the averments of this paragraph of the com- branch nor any schedule for trains or enplaint, are the following: "That said colli
“That said colli- | gines to run. There is no evidence that they sion was brought about by the carelessness of were given orders or warning from the yard defendant's engineer, Raymond Gibson, in master or any one else as to the running of charge of said locomotive on which plaintiff the train. At the time of the collision appelwas working at the time while plaintiff was lee had gotten down from his seat and was in the service of said defendant and in the about to put coal in the fire. He did not see exercise of due care and diligence; that the the approaching engine. Engineer Gibson train on which plaintiff was working, was a was on the inside of the curve in his cab, and work and freight train and was on what is could have seen an approaching train for a known as the 'Sullivan Branch' of said road; quarter of a mile. He was talking with that the train on which he was working as Smithers and Stafford just immediately besuch fireman was going in the direction of fore the accident. Sullivan;
that said injury occurred During the examination of Smithers, he on a curve and said engineer was on the in- was asked the following question: "Q. 10. Tell side of said curve and said train on which the jury how many were hurt in that wreck, plaintiff was riding collided, was in plain and how they were hurt.” Over the objecview from said engineer's side but not in tion of appellant, he answered: "A. I don't plain view or in view at all from the fire- know. Everybody around there was hurt. man's side; that said engineer had full charge Q. 1. Who were the two conductors? A. of said locomotive which was at.said time on O'Day was ours. Q. 2. Was he injured ? A. one of appellant's railways; that plaintiff Yes, he was injured.” These questions were could not see said approaching train and es- answered over the objection of the appellant pecially was he totally in the dark with and its motion to strike out the portions of ceference to same because of the performance the testimony of the witness relative to the
injury of the other persons, was overruled.
there was evidence uncontradicted As tending to show the force of the collision from which the jury could have fairly inand the extent of the accident, it was not ferred the negligence of the engineer. Hoperror to admit these questions.
kins et al., receiver, v. Boyd, 18 Ind. App. 78, Appellee, on his own behalf, was asked: 47 N. E. 480. The engineer was not a wit"Q. 7. Do you know anything to prevent the ness. engineer from seeing down the track?”' Ap- Instruction 4 objected to is as follows: pellant's objection to the same was overruled, "The Laws of the General Assembly of Inand he answered: “No, sir; I don't knuw diana of 1893 contain an act in force in this why he didn't see the train. If he had been state to-day-that every railroad or other looking he could have seen the engine. I corporation, except municipal, operating in could have seen if I would have been on the state, shall be liable for damages for that side.” The testimony of witnesses, personal injury suffered by any employé must as a general rule, be confined to the while in its service, the employé so injured statement of facts. Where the facts can be being in the exercise of due care and dilifully placed before the jury, opinion evi- gence, in the following cases.' Said act then dence is incompetent, if the facts are of proceeds to enumerate four cases where the such a nature that juries are as well qual- company will be liable. Clause No. 1 of ified to form an opinion upon them as wit- said act reads as follows: ‘When such innesses. The question called for the state- jury is suffered by reason of any defect in ment of a fact—the witness's knowledge of the condition of ways, works, plant, tools, any obstruction on the track. A portion and machinery connected with or in use with of the answer was also the statement of a the business of said corporation, when such fact and altogether it merely states that defect was the result of negligence on the there was nothing to have prevented the part of the corporation or some person en.. engineer from seeing the approaching locomo- trusted by it with the duty of keeping such tive if he had looked. It must have been ways, works, plant, tools, or machinery in So
understood by the jury. Indianapolis proper condition.' If therefore, gentlemen St. Ry. Co, v. Robinson, 157 Ind. 414, 61 N. of the jury, you find from the evidence in E. 936.
this case that plaintiff has been injured and Appellee was also asked the following that such injuries were brought about by the questions: "Q. I will ask you if you had reason of any defect in the condition of any talk with the engineer at the time of
ways, works, plant, tools, and machinery the accident as to who was to blame for the as set forth in said first clause just read, accident?” The question was objected to as in that there was no provision for signalnot a part of the transaction, and that it ing trains or any telegraph or telephone called for a conclusion and not a fact. The and that plaintiff, while in the exercise of due objection was overruled and the witness an- care and while in the service of defendant, swered: "A. Gibson said, 'Look what I was thereby injured, then your verdict should have done through my own carelessness,' be for the plaintiff in such amount as the and was crying." The appellant moved to law and the evidence warrants." The obstrike out the answer of the witness, because jections made to the instruction are that it it was hearsay, and not res gesta, and not charges the jury to find for the plaintiff if responsive to the question, and was the opin- he exercises "due care" but omits the equally ion of the witness, and not a statement of important factor of "diligence," and that fact, which motion was overruled. Upon fur- it assumes that the absence of telephones ther examination of the witness, it appeared and telegraph was negligence. Due care emthat this statement was made after the appel- braces diligence and the conditional statelee had been taken out from under the coal and ment with reference to provision for signalafter Stafford, who was killed, had been ling trains, in view of the allegation of the taken out of the wreck and from 20 to 45 third paragraph of complaint, could not have minutes after the accident. We need cite misled the jury. no authority in support of the proposition The sixth instruction refused would have that the admissions of an agent made after told the jury that at the time of the acan event, to which they refer, has transpired, cident the engineer, Gibson, and the plaincannot be received as evidence to bind his tiff were fellow servants and if the injuries principal, unless they are so immediately of the plaintiff were caused by the negligence connected therewith as to become a part of of Gibson, then the plaintiff could not rethe res gestæ. Whether statements are a cover. Under the employers' liability act, part of a transaction are often questions the appellant was made liable for the neglidifficult of solution. We do not deem it nec- gence of the appellant's engineer. essary to decide in this instance, whether or Instruction No. 7 refused, instructed the not, the statement made in answer to the jury to find for the defendant on the first question was or was not a part of the tran- paragraph of the complaint; No. 8, refused, saction. Whether it be construed as the to find for the defendant on the second paranarration of a past event admitting his negli- graph; No. 9, refused, to find for the defendgence or an expression and manifestations of ant on the third paragraph of the complaint. regret, in either event it was harmless be- There was some evidence fairly tending to support each one of these paragraphs, and 5. SAME-DUTY OF INSPECTION-USE. it was, therefore, not error to refuse these
In order that the doctrine of res ipsa loqui
tur be applicable in an action for injuries instructions.
through negligence, it must appear that both Appellant also complains of the refusal of the duty of inspection and the use of the mathe court to give instruction 10. From the chine or appliance causing the injury were at
the time thereof under defendant's control. transcript it appears that said instruction
[Ed. Note.-For cases in point, see vol. 37, was given, but if it had been refused, in view
Cent. Dig. Negligence, $ 218.] of other instructions, which were given by
Appeal from Circuit Court, Marion Counthe court, there would have been no reversible error. The record presents a case of a
ty; Henry Clay Allen, Judge.
Action by Melvin L. Wilson against the daytime collision. There is evidence that appellee has suffered permanent injuries,
National Biscuit Company. Judgment for though not of the most serious character,
plaintiff, and defendant appeals. Aflirmed. without negligence on his part, while in the Miller, Elam & Fesler, for appellant. John discharge of his duty and negligence upon
M. Bailey and F. C. Durham, for appellee. the part of the appellant, and under the letter and spirit of the statute upon the whole
ROBY, J. Action by appellee for damages record the judgment should be affirmed. on account of personal injuries sustained Judgment affirmed.
through the fall of an elevator. Verdict for
$4,000, with answers to 54 interrogatories. WILEY, J. I concur in the conclusion, Appellant's motion for judgment on answers but am of the opinion that the admission of to interrogatories was overruled, as was also evidence as to what the engineer of the loco- its motion for a new trial. Judgment on the motive upon which appellee was fireman, aft- verdict. er the accident was erroneous. The evi- The assignment of error is that the court dence shows that the statement of the engi- erred in overruling the motion for a new neer was made about 45 minutes after the trial. The complaint is in three paragraphs. accident, and, if so, it was not a part of res In the first it is a verred that appellant maingestæ, and should not have been admitted. tained an elevator in its building for the
purpose of transporting merchandise and employés from one floor to another. That it
failed to properly inspect said elevator, alNATIONAL BISCUIT CO. V. WILSON.
lowed it to be overloaded and its machinery (No. 5,711.) 1
to become out of repair and unsafe, because (Appellate Court of Indiana, Division No. 2. of which a large cogwheel therein broke at June 19, 1906.)
the time of appellee's injury; he being on 1. TRIAL-FINDINGS - INFERENCES AGAINST December 16, 1900, in appellant's employment GENERAL VERDICT.
and in the course of his duty, engaged in Under the rule that inferences cannot be drawn as against the general verdict, where, in
taking flour on said elevator from the first an action for injuries sustained by plaintiff to the third story of said building. And through the fall of defendant's elevator, neg- that, while going up with the load, the eleligence was charged in failing to provide proper
vator, because of its unsafe condition, fell safety devices, an interrogatory and answer stating, in effect, that the elevator was furnished
without warning, thereby injuring him, etc. with safety appliances usually placed on freight The second paragraph contains practically elevators did not form a basis for an inference
the same charges of negligence as the first, that the verdict for plaintiff did not rest on the alleged negligence; the condition of the ap
and, in addition thereto, that the appellant pliances not being shown.
failed to provide proper safety devices to 2. NEGLIGENCE-INJURIES-DEFECTIVE ELEVA- catch the car in case of accident, and that TOR-EVIDENCE.
because of the lack of such devices the ele In an action for injuries to plaintiff through the falling of an elevator, through al
vator fell, etc. In the third paragraph it leged negligence of defendant in failing to pro
is further charged that said elevator had vide the same with safety devices, evidence of the been allowed to become worn and out of customary manner of constructing an elevator
plumb, by reason of which it shook from was admissible. [Ed. Note.--For cases in point, see vol. 37,
side to side. That on the occasion of apCent. Dig. Negligence, & 238.j
pellee's injury a truck, holding flour, was 3. SAME EXERCISE OF DUE DILIGENCE BY
being elevated, and, by reason of such conOWNER-USAGE.
dition, caught on the floors of said building, In determining whether the owner of an causing the elevator to break, and, there beelevator exercised due diligence in making the same reasonably safe, the usage of others is not
ing no safety catches and appliances on said the sole criterion, and it cannot be concluded
elevator sufficient to catch and hold the same, as a matter of law that due diligence has been it fell, etc. All of said acts and omissions employed because the elevator is such as is
are alleged to have been negligent, and alordinarily used for like purposes. 4. SAME-RES IPSA LOQUITUR.
legations are made of appellant's knowledge, The fact that a safety device or catch, pla
and appellee's lack of knowledge; that the ced on an elevator to prevent it from falling in negligence set out caused the injury and recase of accident, wholly fails to act in an emer- sulted in damage. gency, tends to establish negligence on the nart of the owner under the rule res ipsa loquitur.
It was shown by the answer to an in.' [Ed. Note.-For cases in point, see vol. 37,
terrogatory, and it was stated by appellee Cent. Dig. Negligence, $ 218.]
as a witness, that the load did not catch up. 1 Affirmed on rehearing, 80 N. E. 83. Rehearing denied. 81 N. E. 947. Transferred to Supreme Court, 83 N. E. 316.
on any floor, so that the verdict does not rest upon the averments to the contrary, which are contained in the third paragraph of complaint. It is insisted that the answers to interrogatories also show that the verdict does not rest upon the alleged negligent failure to provide sufficient safety devices. The interrogatory and answer referred to, in support of this position, state, in effect, that the elevator was furnished with safety appliances usually placed upon freight elevators. The condition of such appliances is not shown. They might be of the kind usually used on freight elevators and also be worn, defective, and inefficient as averred. Inferences cannot be drawn as against the general verdict and this interrogatory and the answer thereto would not form a basis for an inference of the character required, if it were otherwise permissible. The fact stated is an evidentiary one. It is permissible to show the customary manner of constructing an elevator. Sunney V. Holt (C. C.) 15 Fed. 880; Stover v. Millane, 89 Ill. App. 532; Tvedt v. Wheeler, 70 Minn. 161, 72 N. W. 1062; Boess v. Clausen (Sup.) 42 N. Y. Supp. 848. In determining whether the owner exercised due diligence in making the elevator reasonably safe, the usage of others is not the sole criterion, and it cannot be concluded, as matter of law, that due diligence has been employed because the elevator is such as is ordinarily used for like purposes. Lee V. Knapp, 55 Mo. App. 390; Id., 155 Mo. 610, 56 S. W. 458; McCormick v. Burandt, 136 Ill. 170, 26 N. E. 588; Webb on Elevators, § 15, p. 24; Id., § 65, p. 101; Elliott's Evidence, g 186.
This leaves for consideration the question as to whether there was evidence tending to show that said machinery was in a worn, weak, and unsafe condition, that appellant had failed in its duty to make reasonable inspection, or that there were no safety catches and appliances thereon sufficient to catch and hold the same. The elevator was constructed in 1896 with a capacity of 3000 pounds. It had been used until the 16th day of October, 1900. There was evidence tending to show that it had been habitually overloaded and was out of repair. The purpose of a safety clutch is to catch and hold the elevator in the event that the machinery, ordinarily employed in raising and lowering it, shall, for any reason, fail to perform its work. It must be presumed that such appliance, properly constructed and in good repair, will answer the purpose for which it is designed. The rule res ipsa loquitur is that the thing itself speaks. Whether it applies in a given case is said to "become a simple question of common sense.” Whittaker's Smith on Negligence, p. 525 (422). The elevator, by the fall of which appellee was injured, was equipped with a safety clutch which it was the duty of appellant to keep in good condition. The fall of an elevator, of necessity, imperils life. Its char
acter, considered in connection with the law of gravitation, requires the owner to use care proportionate to the circumstances (one of which is the likelihood of injury) to prevent such fall. The fact that, when the very emergency arises upon which the device is brought into use, it wholly fails to act, "speaks for itself” and tends to establish negligence. The appellee had no duty to perform with regard to the safety clutch upon this machine. "Considering the very dangerous character of the machine under consideration, and the dreadful consequences which usually result from an accident, it is obvious that the rule of reasonable care already considered, which is satisfied with nothing less than a measure of care proportionate to the risk or the danger to be avoided, puts upon the master an exact and continuing duty of inspection.” Thompson's Neg. vol. 4, § 3902. In order that the doctrine of res ipsa loquitur be applicable in a given instance, it must appear that both the duty of inspection and use were in the control of the party charged at the time of the injury. Wigmore, Evidence, $ 2509. See notes 1 and 2. The person injured was using the elevator when he was injured. The safety clutch, because of its peculiar function, was only used when an emergency arose, and such use was independent of any control of the person injured. Its operation depended upon agencies provided by appellant and the use made of it was his use. Such use would be no more personal to him had it involved the immediate action of his hands and brain. No voluntary or other action by appellee contributed to the failure of such device to work at the proper time, and it cannot be justly held that such failure was not admissible as a circumstance as tending to show negligence upon the part of appellant. Shafer v. Lacock, 168 Pa. 487, 32 Atl. 44, 29 L. R. A. 254; Howser V. Cumberland, etc. (Md.) 30 Atl. 906, 27 L. R. A. 154, 45 Am. St. Rep. 332; Barnowsky v. Helson (Mich.) 50 N. W. 989, 15 L. R. A. 33: Springer v. Ford, 189 Ill. 430, 59 N. E. 953, 52 L. R. A. 930, 82 Am. St. Rep. 464; Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630.
The circumstances are sufficient to justify the inference of negligence, and to support the verdict.
(39 Ind. A. 151) BALTIMORE & 0. S. R. CO. V. KLEE
SPIES. (No. 5,611.) (Appellate Court of Indiana, Division No. 2.
June 19, 1906.) 1. APPEAL--PRESENTATION OF OBJECTIONS AT TRIAL-INSTRUCTIONS-EXCEPTIONS.
Where a several exception to each of certain instructions was orally taken at the trial, as shown by an orderbook entry, the exception so reserved was sufficient, as provided by Act March 9, 1903, to authorize a review of the instructions on appeal, though the exception dis
1 Transfer denied.