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ing appellant's motion for new trial. The | Co., 146 Ind. 688, 46 N. E. 16; Aspell v. questions involved hinge upon the admissibil- Smith, 134 Pa. 59, 19 Atl. 484. The admisity in evidence of three written instruments. sion that the exhibit was a true copy of the If these were improperly admitted over ap-order was an admission that the terms of pellant's objection, there was not sufficient the order were correctly expressed in it. competent evidence to sustain the decision.

[3] Exhibit D to the deposition of Engel was a memorandum concerning a bill of lading, in part in the following words: "Used in connection with standard form bill of lading.

66

memorandum is an acknowledgment

[1] The first two of these instruments are Exhibit A to the complaint. Exhibit A to the deposition of the witness Engel. Exhibit A to the complaint purports to be the duplicate of an order from appellant to ap- that an agent's No. bill of lading has been pellee, dated February 6, 1911, for the ship-issued, and is not the original bill of lading, nor ment of a filter to be paid for in installments. a copy or duplicate, covering the property namIt contains the following conditions: ed herein, and is intended solely for filing or rec"It is understood that this filter and unused ord. discs are to be returned for credit in good condition to International Filter Co., at Chicago, within 35 days from date of shipment, if direc tions for use are followed, and the results obtained are not satisfactory. All conditions are expressed herein. No verbal agreement will be recognized."

"Received *** on the date of the receipt by the carrier of the property described in the original bill of lading, at Chicago, Ill., Feb. 8, 1911, from International Filter Co., the property described below: "Consigned to Coca-Cola Bottling Co. "Destination, Terre Haute, State of Indiana."

na.”

The shipment was described. The memorandum purported to be signed by appellee and the Pennsylvania Company. Appellant contends that this memorandum was not admissible because its execution was not proven, the orignal bill of lading was not accounted for, and because it did not purport to be a copy or duplicate.

It is urged that Exhibit A to the complaint was erroneously admitted because it was filed with the complaint merely as a bill of particulars, and not as a contract sued on, and that Exhibit A to the deposition of Engel was erroneously admitted because its execution was not proven, since the suit was not founded on this exhibit, it was not referred to in the pleadings, and no notice was served on appellant that it would be offered in evidence, in accordance with sections 370, 501, Burns 1914. However, appellant, in answer to interrogatory 1 submitted to it, admitted that Exhibit A filed with and made part of the complaint was a true copy of the order given by appellant to appellee for the illter and discs for which payment is sought in this action. Exhibit A to the deposition of Engel was in the exact words of Exhibit A to the complaint, except that it purported to be the original of which the exhibit to the complaint was the duplicate. Appellee's secretary identified this exhibit as the order re-issued, and, as between the shipper and the ceived, and testified that he ordered its entry on appellee's books, and appellant, by answer to interrogatory 4, admits that the filter was shipped upon the order referred to in interrogatory 1.

If there was any technical error in the admission of the Exhibit A to the complaint without proof of its execution, this was removed when later the original order was identified by appellee's secretary as the order received and entered by him, and by the admission in answer to the interrogatory that the Exhibit A to the complaint was a true copy of the order, and no harm was done appellant.

[2] An admission as to a writing is like an admission as to any other fact, and justifies the introduction of the writing in evidence. Dunbar v. United States, 156 U. S. 185, 15 Sup. Ct. 325, 39 L. Ed. 390; Loomis v. Wadhams, 8 Gray (Mass.) 557; Smith v. Palmer, 6 Cush. (Mass.) 513; 1 Encyc. Evid. 602. See, also, Unger v. Mellinger, 43 Ind. App. 524, 88 N. E. 74; Combs v. Union Trust

Appellee's secretary had stated that the goods in suit were shipped in response to an order from appellants, and that Exhibit D was the receipt which the Pennsylvania Company, the carrier, had given for them. This exhibit shows on its face that it is not an original bill of lading, or a copy or duplicate, and it would not be admissible in evidence to prove a bill of lading, without first accounting for the original bill, or its duplicate, under the best evidence rule. The exhibit purports to be an original memorandum of the receipt of certain property by a carrier, for which a bill of lading had been

carrier, would be primary evidence as to the fact and date of receipt of such goods. As to appellant it could be used to refresh the recollection of a witness otherwise competent concerning the shipment; but the writing itself was not competent as original evidence against appellant of the correctness of its contents. There was no proof of its execution, and no proof that it was a correct record of the fact and date of shipment of the goods. Appellee's secretary had no personal knowledge of its execution or its correctness. and it was admissible in evidence merely for the purpose of showing that a receipt had been given by the carrier for the goods, but it was not competent evidence of any fact contained in it, as to which there was no independent evidence. It was entirely hearsay as to such facts, the declaration of strangers to the record made out of court. 16 Cyc. 1216, 1196; Kellner v. Phillips, 29 Ind. App. 100, 63 N. E. 877; Loomis v. Stevens, 18 Ind. App. 184, 47 N. E. 237; Walling v. Morgan County, 126 Ala. 326, 28 South. 433;

RIES-QUESTIONS TO BE SUBMITTED.

jury whether their verdict included anything In a servant's action an interrogatory to the for plaintiff's loss of time, etc., until he becomes 21 years of age is improper because asking the jury to itemize the damages in a tort action. Dig. 828; Dec. Dig. 350(1).] Dig. § 828; Dec. Dig. 350(1).]

Tobler v. Austin, 71 S. W. 407; Ft. Worth | 4. TRIAL 350(1)-SPECIAL INTERROGATO& G. Ry. Co. v. Cauble, 41 Tex. Civ. App. 348, 91 S. W. 244; Texas, etc., R. Co. v. Leggett, 86 S. W. 1066; Phenix Ins. Co. v. Hart, 112 Ga. 765, 38 S. E. 67; Price v. Standard Life, etc., Ins. Co., 90 Minn. 264, 95 N. W. 1118; Foster v. Fidelity, etc., Co., 99 Wis. 447, 75 N. W. 69, 40 L. R. A. 833: Railway Ass'n v. Robinson, 147 Ill. 138, 35 N. E. 174.

[4] Appellant's contention, which is supported by its evidence, is that appellant was to have 35 days to actually test the filter; that it was received by appellant on February 18th, tested 25 days, and reshipped on March 21st to appellee, who received it on March 24th. Appellee's contention is that the sale was complete if the filter was not returned within 35 days from the date of shipment, and that it was shipped on February 8th, and therefore not returned within 35 days from that date. However, the only evidence to show that the filter was shipped on February 8th is Exhibit D to the admission of Engel above referred to, and this is incompetent to prove the date of shipment. There is no other evidence as to the exact date of shipment, except that it was later than February 6th. This being the condition of the evidence appellee has failed to prove an essential element of its case, namely that the filter was not returned to it within 35 days from the date of shipment.

The decision of the court is not sustained by sufficient evidence, and the judgment is reversed, with directions to sustain appellant's motion for new trial.

(64 Ind. App. 235)

[Ed. Note.-For other cases, see Trial, Cent.

5. TRIAL 350(1)-SPECIAL INTERROGATO

RIES-SURPLUSAGE.

it submitted a question not presented by the The interrogatory is also improper because issues, and the answer is surplusage.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 828; Dec. Dig. 350(1).] 6. TRIAL

CESSITY.

366-VERDICT-OBJECTIONS-NE

Where the answer to defendant's interrogatory stated that the verdict included an unauthorized item of damages, defendant waived the error by not requesting the court to have the jury deliberate further and eliminate such item. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 875-878; Dec. Dig. 366.]

7. DAMAGES 132(12)-EXCESSIVE DAMAGES -Loss OF HAND.

trial court is not excessive for the loss of left A $5,000 verdict reduced to $4,400 by the hand at the wrist by a 17 year old boy earning $2.48 per day in a coal mine.

[Ed. Note.-For other cases, see Damages, Cent. Dig. § 383; Dec. Dig. 132(12).] 8. APPEAL AND ERROR 1047(3)-HARMLESS ERROR REFUSAL TO WITHDRAW EVIDENCE.

The court's refusal upon dismissing one paragraph of a personal injury complaint to withdraw the evidence submitted under it is not reversible error, where such evidence was also admissible under another paragraph. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4149; Dec. Dig. 1047 (3).]

9. APPEAL AND ERROR 1062(3)-HARMLESS ERROR-SUBMISSION OF ISSUES TO JURY. The court's refusal to withdraw a personal

QUEEN COAL & MINING CO. v. EPPLE.* injury case from the jury, upon dismissing one

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A motion to modify a money judgment which does not state how or to what extent it should be modified is insufficient.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 617; Dec. Dig. 319.]

3. JUDGMENT 338—VACATION-FORM OF

APPLICATION-STATUTE.

A motion to vacate a judgment for insufficiency of evidence and because contrary to law is improper, since the appropriate remedy is a motion for new trial under Burns' Ann. St. 1914, § 585, subsec. 6.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 721; Dec. Dig. 338.]

paragraph of the complaint, is not reversible error, where recovery is limited to the other paragraphs.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4214; Dec. Dig. 1062 (3).]

10. TRIAL

QUESTS.

256(10) - INSTRUCTIONS-RE

Where the court, upon dismissing one paragraph of a complaint, limited recovery to the other paragraphs, the defendant, if dissatisfied, should have requested further instructions.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 637; Dec. Dig. 256(10).]

11. MASTER AND SERVANT 280-EVIDENCE -SUFFICIENCY-PROMISE TO REPAIR.

Defendant's promise to plaintiff to repair a guard on certain machinery need not be established by express words, but the jury may infer it from their conversation and conduct.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig, §§ 981-986; Dec. Dig. ✪TM 280.]

12. MASTER AND SERVANT 204(2)-RISKS ASSUMED BY SERVANT-STATUTORY PROVISIONS.

Under Employers' Liability Act (Burns' Ann. St. 1914, § 8020a et seq.) failure to guard machinery as required by Factory Act (Burns'

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Ann. St. 1914, § 8029) eliminates the defense wrist which was done shortly after the inof assumption of risk.

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jury was received.

The first paragraph is drawn on the theory of the duty of the master to furnish a safe place for the servant to work and suitable and safe tools and machinery with which to do the work assigned; that appellee was young, ignorant, and inexperienced, and did not know or comprehend the danger of working around said unguarded cogwheels; that appellant knew of the dangers incident to the unguarded cogwheels and of appellee's ignorance and inexperience, and negligently

Appeal from Circuit Court, Green County; failed and neglected to discharge its duty and Theodore E. Slinkard, Judge.

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to instruct appellee in regard to his work and to warn him of the dangers incident thereto; that it negligently ordered appellee to start the pump and to clean and oil the machinery; that such order was given by appellant's mine boss, who at the time had

charge of the ways, works, and machinery of appellant in its mine, and to whose orders ap

pellant was bound to conform and obey; that in obedience to such order he started the

FELT, J. This is an action for damages pump, and undertook to clean and oil the for personal injuries. The complaint was in machinery, and while so doing was injured four paragraphs, but at the conclusion of the in the manner aforesaid; that it was the four paragraphs, but at the conclusion of the custom in said mine, long known and acquievidence appellee dismissed the fourth para-esced in by appellant, to clean and oil the graph. Issues were joined by general denial. A trial by jury resulted in a verdict for appellee in the sum of $5,000.

machinery while in operation.

The second paragraph is substantially like

the first, but it also alleges that appellant

The errors assigned and not waived are, in substance, as follows: (1) Overruling appel-off, and that it thereupon promised appellee Iwas notified that the aforesaid guard was lant's motion for judgment on the answers to replace and repair the same; that appelof the jury to the interrogatories notwith-lee relied upon such promise, and at appelstanding the general verdict; (2) overruling appellant's motion for new trial; (3) overruling appellant's motion to modify and va

cate the judgment.

Each paragraph of the complaint alleges, in substance, the relation of master and servant between appellant and appellee, and that

appellee was 17 years old at the time of his injury complained of, and received $2.48 per day for his work; that appellant had in its mine an electric pump used to pump water out of the mine; that on this pump there were two cogwheels which meshed, and over which there had originally been constructed a guard which made the place and the machine safe; that the set screw which held the guard in position broke, and the guard came off and remained off for about one week prior to appellee's injury; that the place and the machine were dangerous when the guard was off; that appellant knew of the danger long enough to have replaced the guard be fore appellee was injured; that it was appellee's duty to clean and oil the machinery, and while doing so in the usual and customary manner by using waste provided by appellant for that purpose the waste which he held in his hand caught in the unguarded cogs, whereby his left hand was drawn into the meshes of the cogwheels and so injured that it was necessary to amputate it at the

lant's request continued to work in and about and with said unguarded machinery; that appellant negligently failed to keep its promremained so unguarded for about one week ise to replace said guard, and the machinery and until appellee was injured.

general averments as the first and second, and is based upon the Employers' Liability Act of 1911 (Acts 1911, p. 145; section 8020a et seq., Burns 1914). It alleges that on Sepet seq., Burns 1914). It alleges that on Septhereto, appellant was a corporation under tember 17, 1912, and prior and subsequent the laws of the state of Indiana and engaged in the business of mining and selling coal; that on said day it employed in its mine more than five men; that it had in its mine the pump and machinery aforesaid; that it was appellant's duty to furnish appellee a reasonably safe place in which to work and reasonably safe machinery and appliances with which to work; that it negligently violated said duty by permitting said guard to remain off and said cogwheels to be and remain unguarded; that by reason of said guard being off said cogwheels and machinery were unsafe, defective, and dangerous; that said cogwheels could have been guarded without in any wise interfering with the free use and operation of said machinery and the purpose

The third paragraph contains the same

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the same was intended to serve; that appellant knew of the unguarded cogwheels in time to have replaced the guard and make the place and machinery safe, but negligently failed so to do, and negligently ordered appellee to work with, in, and about the unguarded machinery, and while so doing in obedience to such orders he was injured. The fourth paragraph, which was dismissed, proceeded on the theory of a statutory duty to guard the cogwheels which caused appellee's injury, and a failure so to do.

The answers of the jury to the interrogatories are, in substance, as follows: That prior to the injury appellee had no experience in operating the pump and machinery; that appellee knew the machinery was unguarded before he was injured, and when injured was engaged in cleaning the machinery; that his injury was caused by the absence of the guard and by doing the work while the machinery was in operation; that appellee knew and appreciated that if his hand was caught in the meshes of the cogwheels he would be injured, but did not know and appreciate the danger of placing his left hand | so close to the meshes of the cogwheels while in operation that the waste held in his hand would be caught in the cogwheels; that at the time of his injury he did not pay particular attention to ascertain whether the guard was over the wheels or how close the waste in his hand came to the cogs; that it was proper for one of appellee's age and experience, with knowledge of the unguarded cogwheels, to undertake to clean the machinery while in motion; that the machinery could have been as readily cleaned when not running as when in motion; that appellee's father was the mine boss, and he was not ordered to clean the machinery while running; that appellee knew how to start and stop the machinery, and he "was required to clean the machinery in its unguarded condition while it was running"; that the foreman required him to do so; that appellee suggested that the repairs be made, and a promise was made to him by the foreman to repair the guard; that appellee suggested that the guard be repaired to prevent an accident; that appellee did not know and appreciate the danger of operating the machinery with the guard off; that the machinery could have been cleaned with safety while not in operation, but with some inconvenience.

Interrogatory 66 and the answer thereto are as follows:

"If your verdict is for the plaintiff, do you include anything in your verdict for loss of time and earning capacity from the time the plaintiff received his alleged injuries to the time he will become 21 years of age? Ans. Yes."

[1] Appellant contends that the answers to the interrogatories show conclusively that appellee was guilty of negligence that contributed to his injury, in this: That he knew the guard was off and was experienced in

ped the pump, and thereby could have cleaned and oiled the machinery in absolute safety. The answers do not support this contention, but are quite conclusive to the contrary. They show that it was proper for one of appellee's age and experience, with knowledge of the unguarded cogwheels, to clean the machinery while in motion; that he was required to do so; that he did not know and appreciate the danger of his work; that he suggested that the guard be repaired, and the foreman promised to have it done. While there is some contradiction in the answers, they fall far short of showing that an ordinarily prudent person of appellee's age and experience in the exercise of ordinary care for his own safety, under the circumstances of this case, would not have undertaken to clean and oil the machinery while in motion as appellee was doing when injured. court therefore did not err in overruling the motion for judgment on the answers to the interrogatories. Jenny Elec. Co. v. Flannery, 53 Ind. App. 397-408, 98 N. E. 424; Nordyke & Harmon Co. v. Hilborg, 110 N. E. 684; McFarlan Carriage Co. v. Potter, 153 Ind. 107114, 53 N. E. 465; Lagler v. Roch, 57 Ind. App. 79, 104 N. E. 111-114; National Fire, etc., Co. v. Smith, 55 Ind. App. 124, 99 N. E. 829.

The

Among the grounds for a new trial appellant alleges:

That the damages are excessive; that "the assessment of the amount of plaintiff's recovery by its verdict included therein loss of time of is erroneous, being too large, in that the jury plaintiff and loss of earning capacity of plaintiff from the time plaintiff received his injuries until he shall become 21 years of age."

Immediately following the entry of the overruling of appellant's motion for judgment on the answers to the interrogatories the record shows the following:

"And the court now considers the evidence with reference to interrogatory No. 66 and the answer thereto heretofore returned in this cause, orders the plaintiff to file and enter a remitand, being fully advised in the premises, now titur in the sum of $600, and upon plaintiff's refusal to so enter the same within ten days a new trial will be granted in this cause. And now the plaintiff enters a remittitur for $600, the plaintiff objects to the order so made, and which remittitur is in words and figures as follows, to wit: *** And now, the court, having considered the motion for a new trial, and the same, and the defendant at the time exbeing fully advised in the premises, overrules cepts. And now the court sustains the motion of the plaintiff for judgment on the verdict in the sum of $4,400. Defendant in the above-entitled case moves the court to modify and vacate the judgment in the above-entitled cause for each of the reasons and on each of tlie grounds, to wit:

"That the answer of the jury to interrogatory 66 shows that there is included in the verdict ing capacity from the time plaintiff was injured in said cause damages for loss of time and earnto wit, 17 years and 1 month old to 21 years of age.

verdict improper elements of damage. "That the jury erroneously included in its

"That the jury included in its verdict a sub

issues in said cause as shown by the answer of the jury to interrogatory 66.

"That the jury included in its verdict a substantial element of damages not included in the issues of said cause with reference to which no evidence was introduced in the trial of said cause, and the defendant has had no hearing in the trial of said cause."

The judgment follows the foregoing statement, and a part of the same entry is shown that "the defendant files a written motion to modify, vacate, and set aside the judgment," the grounds of which are as above shown. The court overruled the motion, and appellant has assigned such ruling as independent error, and has also made the substance of the answer to interrogatory 66 a part of its motion for a new trial, as above shown. The motion is confusing in this: That it asks for relief on two inconsistent grounds, viz., that the judgment be modified, and that it be vacated.

[2] The motion does not indicate in what respect or to what extent the judgment should be modified, and is therefore insufficient to entitle appellant to any relief by a modification of the judgment. Thomas v. Felt, 21 Ind. App. 265-270, 52 N. E. 171; Hormann v. Hartmetz, 128 Ind. 353-358, 27 N. E. 731; Chicago, etc., Ry. Co. v. Eggers, 147 Ind. 299-303, 45 N. E. 786; Stout v. Curry, 110 Ind. 514, 515, 11 N. E. 487; Borror v. Carrier, 34 Ind. App. 353-372, 73 N. E. 123; Elliott's App. Procedure, §§ 345, 346.

[3] If we disregard the part of the motion that seeks a modification of the judgment as surplusage, we have a motion to vacate and set aside the judgment as an entirety on the grounds alleged. If appellant is entitled to have the judgment set aside either on the ground of insufficiency of evidence, or on the ground that it is contrary to law, the statute authorizes and requires such relief to be obtained by motion for a new trial. The motion as presented is not recognized by our practice, and the relief sought must be obtained, if at all, under the motion for a new trial. Section 585, cl. 6, Burns 1914; Elliott's App. Procedure, § 350. While error in the assessment of the amount of recovery is not a proper ground for a motion for a new trial in a case sounding in tort, appellant has also alleged that the damages are excessive, and we therefore proceed to determine the question from a consideration of the motion for a new trial. The motion shows that the contention as to excessive damages is based largely on the answer of the jury to interrogatory 66.

[4, 5] We are therefore called upon to decide whether the interrogatory was proper under the issues, and, if proper whether we can look to the answers of the jury to the interrogatories to determine whether the damages assessed are excessive. The interrogatory, in effect, calls upon the jury to itemize the amounts entering into the verdict, and this is not permissible in a tort case. Furthermore, the issues present no

claim for services from the time of the jury until appellee became 21 years of age, and the instructions did not authorize the assessment of any such damages. The question was therefore improper, and did not bear upon any issue in the case. The interrogatory being improper, it and the answer thereto must be treated as surplusage, and can have no effect on the decision of the question relating to the amount of the damages awarded. Section 572, Burns 1914; Cleveland, etc., Ry. Co. v. Miller, 165 Ind. 381, 389-391, 74 N. E. 509; Farmers' Ins. Ass'n v. Reavis, 163 Ind. 321-324, 70 N. E. 518, 71 N. E. 905; L., N. A. & C. Ry. Co. v. Bates, 146 Ind. 564-570, 45 N. E. 108; Valparaiso Lighting Co. v. Tyler, 177 Ind. 278-287, 96 N. E. 768; Roller v. Kling, 150 Ind. 159-161, 49 N. E. 948; Skillen v. Jones, 44 Ind. 136-150; Southern Ind. Ry. Co. v. Moore, 34 Ind. App. 154-158, 72 N. E. 479; Ohio, etc., Ry. Co. v. Judy, 120 Ind. 397-400, 22 N. E. 252; Salem-Bedford Stone Co. v. Hilt, 26 Ind. App. 543-546, 59 N. E. 97; Keller v. Gaskill, 20 Ind. App. 502-513, 50 N. E. 363; Lagler v. Roch, 57 Ind. App. 78-86, 104 N. E. 111; Cleveland, etc., Ry. Co. v. Stevens, 49 Ind. App. 647-653, 96 N. E. 493.

That such an interrogatory as the one here under consideration is improper was expressly decided by our Supreme Court in Muncie & Portland Traction Co. v. Hall, 173 Ind. 95, 89 N. E. 484, wherein the court say:

"There was no error in refusing to submit interrogatories 21 and 22 to the jury, because they did not require the finding of any fact inassessed any damages on account of certain matvolved in the issues, but only whether the jury ters mentioned in said interrogatories, and included the same in the general verdict, and to give the amount thereof. In other words, they were asked to specify some of the items of dam

ages."

While we are clearly of the opinion that interrogatory 66 is improper and should not have been submitted, nevertheless the contention that the interrogatory reveals the fact that the jury included in its verdict an element of damages that is unauthorized is not without merit.

[6] However, on the facts of this case, . we hold that appellant is not entitled to any relief on account of such answer, for the reason that appellant, in effect, invited the error. The record shows that after the jurors were instructed, they retired "to deliberate of their verdict and answer the interrogatories submitted by the defendant." Therefore appellant tendered, and the court at its request submitted, an improper interrogatory. By such improper means appellant obtained information that an unauthorized element of damages had been included in the verdict of the jury. When the answer to such interrogatory was read, appellant was apprised of that fact, and it then became its duty to move the court to send the jury back to reconsider the question of the amount of damages to be awarded and

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