East Chicago Foundry Co. v. Ankeny

Comstock, J. — This was a suit by appellee, Ankeny, against the appellant, East Chicago Foundry Company, to recover damages sustained by him by reason of falling into a molding pit in appellant’s foundry at East Chicago. The complaint was in one paragraph. To the complaint the appellant filed a motion to require that it be made more specific, which was overruled and appellant excepted, and filed a demurrer for want of facts to the complaint, which demurrer was overruled and exception taken, and then answered by general denial. Upon the issues thus formed, the case was submitted to a jury and a special verdict returned, upon which each party moved for judgment. The court below overruled appellant’s motion for judgment, to which appellant excepted, and sustained appellee’s motion and rendered judgment in appellee’s favor, and appellant again excepted. The errors assigned are, (1) the overruling of the motion to make the complaint more specific; (2) the overruling of the demurrer; (3) the refusal to render judgment in appellant’s favor, and (4) the rendering of judgment in appellee’s favor. [152] The complaint, in substance, sets forth that on March 29, 1895, the appellant was affoundry company engaged in the molding business, operating said business at East Chicago, in which the appellee, a molder, and other workmen, were employed; that in conducting and carrying on the work at its said foundry, the appellant, prior to March 29th 1895, dug and excavated a large molding pit about fifteen feet deep, which appellant negligently permitted to remain open and uncovered and unsupplied with lights or signals so that it could not be seen, and without guards or railing around the same, and on said day, while working near said pit, in the performance of his duties, plaintiff started to get some flour to be used about his work, and without any knowledge or notice of the existence of said pit, on account of the darkness and the color of the floor of said foundry, and not being able to see said pit, and without any carelessness on his part, walked into it, and thereby sustained the injuries complained of. We think the complaint was sufficiently specific, and stated a cause of action, and, therefore, that the motion to make the same more specific and the demurrer thereto were properly overruled. The other errors discussed relate to the sufficiency of the special verdict to support a judgment for appellee. The special verdict must find facts to show that appellee suffered the injury complained of by reason of the negligence of the appellant, and that he was guilty of no negligence approximately contributing to said injury. Interrogatories sixty-three, sixty-four, sixty-five, sixty-eight, and sixty-nine, and the answers thereto constitute a part of the special verdict. Interrogatory sixty-three reads as follows: “Is it a fact that if the plaintiff in going after the flour if he had carefully looked on the ground ahead of him as he was [153] walking along could have seen the pit in time to have avoided falling into it? Answer: No.” Interrogatory sixty-four: “Did the plaintiff at the time he approached the said pit, when he fell into it, carefully-watch and look on the ground ahead of him as he was walking along? Answer: No.” Interrogatory sixty-five: “If the plaintiff as he was walking toward said pit had carefully looked and watched where he was stepping would he have walked into said pit? Answer: No.” Interrogatory sixty-eight: “Was there not at the time the plaintiff fell into said pit a rim from four to ten inches in height around said pit, and could plaintiff, if he had been looking down and ahead of him, have seen said rim before walking or stepping into said pit? Answer: Yes.” Interrogatory sixty-nine: “Was not such a pit as plaintiff fell into one of the usual appurtenances in connection with foundries such as the defendant’s foundry in controversy? Answer: Yes.” We think it cannot be said in view of the facts thus found in answer to these interrogatories that the plaintiff was exercising the care incumbent upon him under the circumstances. For this reason, the judgment must be reversed. We are of the opinion, however, because of the conflicting findings of the jury, that the ends of justice will be best subserved by granting a new trial. The court below is instructed, if a motion for a new trial is filed within sixty days, to sustain the same. Otherwise, to render judgment for appellant.