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defective and out of repair, so that, after they , unnecessary to consider the question as to the were stopped, they did not always remain still, other paragraphs, since the general verdict prebut moved along the track, and that the injury sumably rests upon all of them, and should be was caused by the carelessness of the master in sustained, if it can be supported by any. permitting such defective condition to exist and

[Ed. Note.-For other cases, see Trial, Cert. remain for months prior to the injury, he has a Dig. 8 777; Dec. Dig. Om330(1).) cause of action under Burns' Ann. St. 1914, s 8020a, making the employer liable for his or

7. CONTINUANCE Cm 46(7) — GROUNDS — ABhis servants' negligence, and section 8020c, de

SENT WITNESSES–DILIGENCE-PBOBABILITY priving the master of the defense of assumption

OF PROCURING ATTENDANCE. of risk of employment or negligence of fellow

Under Burns' Ann. St. 1914, $ 419, requirservants.

ing as a prerequisite to continuance that dili[Ed. Note. For other cases, see Master and gence be shown and that attendance of the abServant, Cent. Dig. 88 203, 212, 255; Dec. Dig. was no abuse of discretion in refusing a con

sent witness will probably be procured, there 108.)

tinuance on a showing that the trial was set 2. MASTER AND SERVANT Om108-EMPLOYERS' for September 16th, subpæna issued September LIABILITY ACTS-QUARRIES--MAINTENANCE. 11th, was placed in the hands of the sheriff,

Where a quarry workman received injury to who on the 14th returned it not found, without his hand over which a channeling machine, which a showing of any probability of procuring the he operated, ran, and the master pegligently attendance of the witnesses within a reasonfailed to properly maintain the track, and be able time. cause thereof the machine started and caused [Ed. Note.-For other cases, see Continuance, the injury, he has a cause of action under Cent. Dig. 8 135; Dec. Dig. Om 46(7).] Burns' Ann. St. 1914, 8, 8020a, making the employer liable for his or his servants' negligence, 8. APPEAL AND ERROB Om757(4), 1078(4)— and section 8020b, placing on the master the

BRIEFS STATEMENT OF POINTS – SUFFIburden of proving the employe's negligence and

CIENCY. abolishing the defense of contributory, negli Any objection to the instructions tendered gence if the servant was injured in obeying the and refused by the court is waived by failure to master's rule, and section 8020c, depriving the set them out in the brief, and also by failure master of the defense of assumption of risk to state any point or proposition relating thereof employment or negligence of fellow servants.

to in the briefs. [Ed. Note.-For other cases, see Master and

(Ed. Note. For other cases, see Appeal and Servant, Cent. Dig. 88 203, 212, 255; Dec. Dig. Error, Cent. Dig. $$ 3092, 4259; Dec. Dig. m108.]

757(4), 1078(4).] 3. MASTER AND SERVANT 179-EMPLOYERS' Appeal from Circuit Court, Lawrence CounLIABILITY ACTSFELLOW SERVANT.

ty; Oren O. Swalls, Judge. If a fellow servant negligently started the machine which he operated, and thereby pro

Action by Claude H. Lavender against the duced vibration of the track, thereby causing Indiana Quarries Company. Judgment for the injured servant's machine to run over him, plaintiff, and defendant appeals. Affirmed. he has a cause of action under Burns' Ann, St. 1914, & 8020a, making the employer liable for Underwood & Underwood, of Bedford, for his or his servants' negligence.

appellant. James E. Boruft and Ray R. (Ed. Note. For other cases, see Master and Boruff, both of Bedford, for appellee. Servant, Cent. Dig. 88 354358; Dec. Dig. Om 179.) 4. TRIAL 359(1)-VERDICT-SPECIAL FIND

FELT, C. J. This is a suit for damages for

personal injuries. The complaint is in three To overcome the general verdict, the an- paragraphs, on which issues were joined by swers to interrogatories must show that they general denial. A trial by jury resulted in are in such irreconcilable conflict with the general verdict that it cannot be sustained on

a verdict for appellee for $3,250, on which either of the interrogatories, or by any evidence judgment was rendered. From this judgment that might have been offered under the issues appellant has appealed, and assigned as error of the case.

{Ed. Note.- For other cases, see Trial, Cent. the overruling of its separate demurrer to Dig. 88 857–860, 875, 878; Dec. Dig. each paragraph of the complaint, the over359(1):)

ruling of appellant's motion for judgment on 5. MASTER AND SERVANT Om 297(2)—INJURIES the answers of the jury to the interrogatories TO SERVANT-VERDICT AND FINDINGS.

notwithstanding the general verdict, and the Where the servant's complaint alleged de fective machinery and appliances, and special overruling of its motion for a new trial. interrogatories were answered to the effect that The first paragraph of complaint alleges it was the servant's duty to inspect the machin- in substance that on October 12, 1912, appelery, but that other inspectors were provided to inspect and keep in repair the machine if the lant was a corporation duly organized and plaintiff could not do so, and that such inspector doing business in Lawrence county, Ind., and had informed the plaintiff that his machine had engaged in quarrying and shipping stone; been repaired, in view of Burns Ann. St. 1914, that it was then and there engaged in busi8.8020a, defining employer's liability for defective appliances, the special interrogatories were ness, trade, and commerce, and in so doing not so in conflict with the general verdict as employed a large number of persons, more to overcome it.

than five in number; that on and prior to [Ed. Note.--For other cases, see Master and Servant, Cent. Dig. $ 1196;' Dec. Dig. On the date aforesaid appellee was employed by 297(2).]

appellant to operate a machine called a 6. TRIAL Omw330(1)—VERDICT-FORM.

channeler, and on said day was operating a Where the jury returned a general verdict Sullivan channeler, which ran back and forth for the injured servant, and answered special over two T-rails laid about 4 feet apart and interrogatories, and the answers were not in irreconcilable conflict with the verdict if based 96 feet long; that another similar machine on the first paragraph of the complaint, it is I was being operated on the same track by one


William Paxton; that the machine operated | lessly and negligently inclined the same toby appellee faced the east, and the one oper- ward the west; that it became and was necesated by Paxton faced to the west; that each sary for appellee in the line of his duty to of said machines was operated by two en- remove a spaul or small stone from the changines, one of which was used to raise and nel made by the drills, and to do so he had lower the drills which did the channeling, to place his left hand upon one of the T-rails and the other and smaller engine moved the of the track, and thereupon, while in that machine along the track; that a Sullivan ma- position, and while working in the line of his chine is stopped by moving a certain lever duty, on account of the track inclining downand placing the machine on "center"; that ward and westward toward his hand, and when such machine is in good repair and the negligence of said Paxton in failing to perfect working condition, and so stopped, it make the track level, the machine suddenly will not move until taken off "center"; that ran upon and over his left hand and injured the larger of the two engines operated the him as alleged. drills which do the channeling, and to stop The third paragraph contains substantialchanneling such engine was put on "cushion," ly the same general averments as the first and the drills, though in motion, would not and second, and alleges that while appellee then strike the stone; that appellant care- was engaged in removing the spaul from the lessly and negligently permitted the small channel made by the machines, and William engine and gearing on said machine operated Paxton, an employé of appellant, operating by appellee to become defective and out of another channeling machine on said track, repair, so that when the aforesaid machine suddenly, carelessly, and negligently started or engine was placed on "center" and the ma- his machine and caused the track to vibrate, chine stopped it would not at all times re and thereby caused appellee's machine to main on "center" and keep the engine from start and move to the west and injure his moving; that appellant knew the small en- hand in the manner aforesaid. gine on the machine operated by appellee was The demurrer to each paragraph of the defective and dangerous to the life and limbs complaint was for insufficiency of the facts of those operating it, or might by the exer- alleged to state a cause of action. The memocise of reasonable care have known thereof, randa contain numerous specifications of aland that it would not remain stationary when leged reasons for such insufficiency, the gist placed on "center"; that, while operating said of which is that the allegations fail to show machine on the day aforesaid, a spaul or any negligence on the part of appellant which piece of rock fell down into the channel was the proximate cause of appellee's injury; where the drills were operating, and it was the allegations fail to show that appellee did necessary for appellee in the line of his duty not know and appreciate the danger incident to remove the same in order to continue his to his employment; that each paragraph work of channeling; that thereupon he set shows that the injury was due to an unavoidthe small engine on "center" by using the lever able accident on the part of a fellow servant provided for that purpose, and went behind which could not have been foreseen and the machine to remove the spaul from the guarded against by appellant; that the inchanneled space in the rock; that in so doing jury was due to hazards inherent in the emhe laid his left hand on one of the T-rails, ployment and the risk was assumed by appelwhen on account of its defective condition lee; that the allegations conclusively show aforesaid the machine suddenly ran back- appellee's injury was contributed to by his ward and caught his hand, and cut and man- own negligence; that they fail to show the gled it so that he lost all but the thumb and master's knowledge of the alleged defects in a part of one finger; that "said injury was time to make repairs and avoid the accident; caused by reason of the defective condition that the averments do not negative knowlof the small engine on his channeling ma edge of the defects on the part of appellee; chine, and the carelessness of said defendant that the averments fail to state a cause of in permitting said condition to exist, and to action under the Employers' Liability Act of have remained for months prior to his in- 1911. jury.”

Each paragraph of the complaint seeks to The second paragraph of complaint con- state a cause of action under the Employers' tains the same general averments as the first Liability Act of 1911 (Acts of 1911, p. 145; paragraph, and also charges that a track was section 8020a et seq., Burns' 1914), and must laid over and upon the stone to be channeled, therefore be tested by such theory. Section along and over which said machines were 1 of the act provides that: propelled; that it was necessary to the oper.

“Any person, firm or corporation while enation and safety of the machines that the gaged in business, trade or commerce within track be kept level; that appellant employed this state, and employing in such business, one William Paxton to lay and level said be liable to respond in damages to any person

trade or commerce five or more persons shall tracks, and it was his business to see that suffering injury while in the employ of such the track was kept level; that Paxton care person, , firm or corporation,

where lessly and negligently failed and neglected to such injury, or death resulted in whole or in

part from the negligence of such employer or keep and maintain said track level, and care l his, its or their agents, servant, employés or

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officers, or by reason of any defect, mismanage, while appellee was in the act of removing the ment or insufficiency, due to his, its or their spaul from the channel in the stone, and carelessness, negligence, fault or omission of duty."

thereby produced vibration of the track, Section 2 of the act (section 8020b, Burns which caused appellee's machine to start sud

denly and run over and crush his hand. This 1914) provides: "In actions brought against any employer un

paragraph states a cause of action under the der the provisions of this act for the injury or first section of the act, supra. Indiana Quardeath of any employé, it shall not be a defense ries Co. v. Farmer, 110 N. E. 549; Central that the dangers or hazards inherent or apparent Ind. Ry. Co. v. Clark, 112 N. E. 892; Chicago in the employment in which such injured employé was engaged, contributed to such injury.” | & E. Ry, Co. v. Mitchell, 110 N. D. 680, Section 3 of the act (section 8020c, Burns' sufficient under the statute, it is unnecessary

Since each paragraph of the complaint is 1914) provides:

to consider the propositions discussed by ap"In any action brought against any employ: pellant relating to common-law liability. er under the provisions of this act to recover damages for injuries to or the death of, any The answers of the jury to interrogatories of his, its or their employés, such employé shall in substance show that appellee had been not be held to have assumed the risk of any operating a channeling machine for five defect in the place of work furnished to such employé, or in the tool, implement or appliance months or more before his injury, and that furnished him by such employer, where such he had full control of the machine he operatdefect was, prior to such injury, known to such ed; that it was his duty to see that the maemployer or by the exercise of ordinary care might have been known to him in time to have chine was in good running order, to make repaired the same or to have discontinued the such adjustments and repairs as he could use of such defective working place, tool, imple- make, and report to the mechanic such as he ment or appliance. The burden of proving that such employer did not know of such defect, or could not make; that appellee's machine got that he was not chargeable with knowledge off center two or three weeks before he was thereof in time to have repaired the same or to injured, and he was told by one of appelhave discontinued the use of such working place, lant's mechanics that it had been fixed; that tool, implement or appliance, shall be on the de fendant, but the same may be proved under each operator of a channeling machine inthe general denial,"

spected it and reported defects; that appel[1] The averments of each paragraph of lant had its channeling machines inspected the complaint bring it within the general pur- by the operators of them and also by mechanview of the statute. The first paragraph of ics; that appellee stopped his machine before the complaint shows that the small engine attempting to remove the spaul from the and the gearing of the machine operated by channel cut, and placed his hand on the Tappellee became and were defective and out rail with his back to the machine, and was of repair, so that when the machine was stop injured while in that position; that the maped and set on "center" it would not always chine started because of the defective gearremain still, but would sometimes start and ing; that the gearing and dogs on the small move along the track because of such defec engine of machine No. 9 operated by appellee tive condition, when it should have remained were defective; that appellant required operstationary on the track; that appellee's in- ators of such machines to have skill and ex. jury was caused by the carelessness of appel- perience sufficient to inspect the machines, lant in permitting such defective condition to and appellee had such skill; that the friction exist “and to have remained for months prior gear is a part of the engine; that William to appellee's injury.” These averments state Paxton on the day of appellee's injury was a cause of action under the first and third operating a similar machine on the same sections of the act of 1911, supra, and we track; that appellee and Paxton were of therefore hold the first paragraph sufficient. equal rank in employment, and appellee was Kokomo Brass Works v. Doran, 59 Ind. App. not required to obey the orders of Paxton; 583-588, 105 N. E. 167; Vandalia R. R. Co. v. that it was a part of appellee's duties to Stillwell, 181 Ind. 267–271, 104 N. E. 289, level the part of the track on which his maAnn. Cas. 1916D, 258; Vandalia Coal Co. v. chine ran; that the track was out of level, Alsopp, 109 N. E. 421, 422; Domestic Block one-half inch to 12 feet, at the place where Coal Co. v. De Armey, 179 Ind. 592-601, 100 appellee was injured, and the condition of the N. E. 675, 102 N. E. 99.

track had something to do with appellee's in[2] The gist of the second paragraph of jury; that it was the custom for appellee and complaint is that it was necessary to keep Paxton to start and stop their respective mathe track level on which the machines oper- chines without notifying the other party, and ated, and that appellant negligently failed to this custom was known to appellee; that the 80 keep and maintain the track, and because starting of Paxton's machine probably had thereof appellee's machine suddenly started something to do with appellee's injury, by and crushed his hand. These averments jarring the track. state a cause of action under the first, sec Appellant asserts that the answers conond, and third sections of the act, supra. clusively establish the fact that appellee was

[3] The gist of the third paragraph is that guilty of contributory negligence, that his opPaxton, a fellow servant of appellee, negli- portunity was better than that of the master

Jury, and that the answers conclusively showrence county, who on September 14th, made that the master could not have been negligent return showing the witnesses not found in as alleged without appellee also being guilty his balliwick. The affidavit states that apof negligence contributing to his injury. The pellant then learned for the first time of the general verdict is a finding in appellee's fa- absence of the witnesses, and that they "are vor as to all the paragraphs of the complaint now in the state of Michigan at work in a and of every issuable fact in each of such stone quarry, but the exact location of said paragraphs.

quarry is unknown" to appellant and its at[4] To overcome the general verdict the torneys; that afflant believes the stateanswers to the interrogatories must show ments to which said absent witnesses will that they are in such irreconcilable conflict testify to be true, and appellant "is unable with the general verdict that it cannot be sus- to prove said facts by any other witness tained on either of such paragraphs, or by whose testimony can be as readily procured"; any evidence that might have been offered that the absence of the witnesses had not under the issues of the case.

been procured by the act or connivance of [5] The first paragraph charges defective appellant, or by any other person at its remachinery and appliances. The answer quest or with its knowledge or consent. Secshow that it was appellee's duty to inspect tion 419, Burns' 1914 Statutes, which authorhis machine, but they also show that appel- izes the postponement of trials on account lant provided mechanics other than the oper- of the absence of evidence, among other ators of the machines to inspect and keep things, requires the affidavit to show them in repair, and that one of such mechan-that due diligence has been used to obtain it, ics bad informed appellee that his machine and where the evidence may be; and if it is for had been fixed after it had been out of repair an absent witness, the affidavit must show the some two weeks before the accident. Keep the probability of procuring the testimony with

name and residence of the witness, if known, and ing in mind the provisions of the act of 1911, in a reasonable time." supra, which state the conditions under which an employer may be held liable to an

The showing of diligence to procure the employé for a personal injury, and the pro- attendance of the absent witnesses is not satvisions as to the assumption of risks, it be- isfactory, and there is no showing of any comes apparent that the answers are not in probability of procuring the attendance of irreconcilable conflict with the general ver- the witnesses within a reasonable time. dict, based on the irst paragraph of the com- Trial courts have a judicial discretion in plaint. Appellee was required to use ordina- granting or refusing continuances, and on ry care for his own safety, and the answers the showing made in this case there was no do not show that a reasonably prudent per- such abuse of that discretion as will warrant son, in the exercise of ordinary care, would this court in reversing the judgment because not have done as he did under the circum- of the court's refusal to postpone the trial. stances, or that such person would have done Post v. State ex rel., 14 Ind. App. 452-458, something he failed to do to avoid the acci- 42 N. E. 1120; Deacon v. Rasch, 40 Ind. App. dent.

77-80, 81 N. E. 84; Dunnington v. Syfers, [6] The answers fall short of showing that 157 Ind. 458-462, 62 N. E. 29; Weaver v. they are in irreconcilable conflict with the State, 154 Ind. 1-4, 55 N. E. 858; Pettit v. general verdict, if based on the first para- State, 135 Ind. 393-405, 34 N. E. 1118. graph of complaint, and it therefore becomes [8] Appellant complains of the giving of unnecessary to consider the question in rela- certain instructions to the jury and of the tion to the other paragraphs, since the gener- refusal to give others tendered by it. In its al verdict presumably rests on all the para- briefs appellant bas only set out those given graphs, and the motion was properly over- and excepted to by it. Considering the inruled, if it may be sustained on either one structions as a whole in connection with our or more of the paragraphs of the complaint. view of the complaint, they state the law sub

[7] Under the assignment that the court stantially as declared in this opinion and the erred in overruling the motion for a new cases cited. Any objection to the instructions trial, appellant presents alleged error of the tendered and refused by the court is waived court in overruling its application for a post- by failure to set them out in the brief, and ponement of the trial on account of the ab- also by the failure of appellant to state any sence of two witnesses. The affidavit for point or proposition relating thereto in its the continuance was made on the day the briefs. case was set for trial, and sufficiently sets The case seems to have been fairly tried, forth the materiality of the evidence and the and a correct result reached on the merits. competency of the absent witnesses. The There is evidence tending to sustain the vercase was set for trial on September 16, 1914, dict. No intervening errors have been pointin the Lawrence circuit court. The sub-ed out which deprived appellant of any subpæda was issued on September 11, 1914, and stantial right or warrant a reversal. placed in the hands of the sheriff of LAW Judgment affirmed.

(63 Ind. App. 218)

to real estate which the wife and husband own HAEHNEL et al. v. SEIDENTOPF. as tenants by the entireties. (No. 9424.)

[Ed. Note.-For other cases, see Mechanics'

Liens, Cent. Dig. $ 85; Dec. Dig. Ow71.) (Appellate Court of Indiana, Division No. 1.

Appeal from Superior Court, Lake CounDec. 13, 1916.)

ty; Walter T. Hardy, Judge. 1. APPEAL AND ERROB 750(1)-QUESTIONS Action to foreclose a mechanic's lien by

PRESENTED FOR REVIEW ASSIGNMENT OF Frank Seidentopf against Herman Haehnel ERROR.

An assignment that the court erred in not and another. Judgment for plaintiff, and derequiring plaintiff to file a bond for costs does fendants appeal. Afirmed. not challenge the court's ruling in permitting plaintiff, after the motion for cost bond was fil

John M. Stinson, of Hammond, for appeled, to sue as a poor person.

lants. Milo M. Bruce, of Hammond, for ap [Ed. Note.-For other cases, see Appeal and pellee. Error, Cent. Dig. $S 3074, 3075, 3082, 3083; Dec. Dig. Omw 750(1).]

HOTTEL, J. Appellee, in a complaint in 2. Costs C131-BOND-PERMISSION TO SUE one paragraph, sought to recover of appelAS POOR PERSON-REMOVAL FROM STATE.

The removal from the state of one who lants a balance alleged to be due bim on achad been permitted to sue as a poor person does count of work and labor performed and manot necessitate his giving a bond for costs. terial furnished in the erection of certain

[Ed. Note.--For other cases, see Costs, Cent. buildings on appellants' real estate described Dig. 88 500-502; Dec. Dig. Om 131.]

in the complaint, and to foreclose a mechan3. Costs Cm131-BOND-PERMISSION TO SUE ic's lien on said premises. A motion to make AS POOR PERSON-REMOVAL FROM STATE.

Where a plaintiff, who had removed from the complaint more specific and a demurrer the state after beginning the action, was prop- to the complaint were each overruled. The erly permitted to sue as a poor person on an ap- appellants filed an answer in denial and a plication made after defendant had moved for

counterclaim. There was a trial by the a cost bond, the overruling of the motion for cost bond was not error.

court, and a general finding that there was [Ed. Note.-For_other cases, see Costs, Cent. due appellee on his complaint the sum of Dig. 88 500_502; Dec. Dig. 131.]

$440, and a finding for appellants on their 4. EXCEPTIONS, BILL OF Om 26 DELAY IN cross-complaint in the sum of $190, that FILING-RECITAL IN BILL.

appellee should have judgment for $250, plus The recital in the bill of exceptions of the an attorney fee of $40, which sum was deday it was presented, which was one day after the expiration of the time given to file the bill, clared to be a lien upon said real estate. will be taken as correct, notwithstanding a re- Judgment was rendered for appellee in accital that it was within the time allowed for cord with the finding. Appellants filed a the filing. [Ed. Note. For other cases, see Exceptions, During the progress of the trial, it develop

motion for a new trial, which was overruled. Bill of, Cent. Dig. $ 33; Dec. Dig. Om 26.]

ed that appellee, after filing his suit, had 5. APPEAL AND ERROR 537 QUESTIONS

PRESENTED FOR REVIEW-DELAY IN FILING changed his residence from that part of the BILL OF EXCEPTIONS.

city of Hammond which is located in the In order to present a question, the deter- state of Indiana, where he resided when his mination of which depends on the evidence, the action was begun, to a part of said city 10bill of exceptions, containing the evidence, must be presented to the trial judge within the time cated in the state of Illinois. Thereupon fixed for filing it.

appellants moved the court to require appel[Ed. Note. For other cases, see Appeal and lee to give a cost bond. The appellee then Error, Cent. Dig. 88 2404, 2405; Dec. Dig. Ons filed a petition to prosecute his action as a 537.)

poor person, and supported the same by an 6. PLEADING 367(2) MOTION TO MAKE atfidavit, whereupon the court permitted MORE SPECIFIC-KNOWLEDGE.

Where a complaint to foreclose a mechanic's him to so prosecute his action, and which rullien on property owned by defendants in entirety ing of the court the appellants excepted. alleged the construction of buildings on the [1] The several rulings of the ial court, premises under a contract with the husband and above indicated, except the last, are each then alleged that the buildings were constructed with the knowledge, consent, and acquiescence separately assigned as error in this court, of the wife, and that in all things therein and relied on for reversal. The ruling last mentioned the husband acted as agent for the above indicated is attempted to be presentwife, a motion to make more specific by showed by the first ground of appellants' motion ing what knowledge, if any, plaintiff had given the wife was properly overruled, since the com- for a new trial, in the following words, viz.: plaint, in effect, alleges that the wife had all the "That the court erred in not requiring plainknowledge in her husband's possession.

tiff to file bond for costs, the plaintiff being a [Ed. Note.-For other cases, see Pleading, nonresident at the time of the beginning of the Cent. Dig. 88 64, 1174; Dec. Dig. 367(2).] trial." 7. MECHANICS' LIENS Ow71–PROPERTY AF

[2] This is not the ruling shown by the FECTED-STATUTE-ESTATE BY ENTIRETIES. record to have been made by the court. The

Burns' Ann. St. 1914, § 7860, which re-only ruling disclosed by the record affecting quires the written consent of the wife in order this question is the rule permitting appellee to charge her personally and alone with repairs or improvements made on her separate real to prosecute his action as a poor person. Asestate by order of the husband, does not apply suming, however, that the ruling made had

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