Wolf, Administratrix, v. The Big Creek Stone Company. WOLF, ADMINISTRATRIX, V. THE BIG CREEK STONE COMPANY. [No. 18,144. Filed September 21, 1897.] APPEAL AND ERROR.—Answers to Interrogatories.—Overruling Motion for New Trial.-Harmless Error.- Error cannot be predicated upon the action of the court in not requiring the jury to return more definite answers to three interrogatories where answers to other interrogatories were such as to prevent a recovery by the camplaining party. pp. 317, 318. MASTER AND SERVANT.-Damages for Death of Servant.-Defective Appliances.-Knowledge of Danger.—A recovery cannot be had for the death of a servant, caused by defective appliances furnished by the master, where it is shown that the servant had equal, if not better opportunities of knowing the condition of such appliances than the master. pp. 318, 319. From the Monroe Circuit Court. Affirmed. John R. East, R. G. Miller, J. E. Henley and J. B. Wilson, for appellant. H. C. Duncan and I. C. Batman, for appellee. HOWARD, J.—This was an action by appellant to recover damages for the death of her husband who, on August 23, 1890, was killed in the quarry of appellee by the falling of a derrick used to lift rock in the quarry. The jury returned a special verdict, being answers to interrogatories, upon which the court rendered judgment for the appellee. It is contended that the judgment should have been for the appellant, and also that the court erred in overruling the motion for a new trial. The motion for a new trial was based upon an instruction directing the jury to return more definite answers to three interrogatories. Whether there was error in this we Wolf, Administratrix, v. The Big Creek Stone Company. need not inquire, for the reason that even if the three answers were to be taken as originally returned, as appellant contends they ought to be, yet such answers, together with the remaining answers, over two hundred in number, would show such a state of facts as must preclude any recovery by appellant. On the former appeal, Big Creek Stone Co. v. Wolf, 138 Ind. 496, the evidence was found to show that the deceased "had an equal, if not a better, opportunity of knowing the condition of the derrick" than the appellee. On this appeal the same state of facts is shown by the verdict of the jury. From the verdict it appears, as said by Judge Coffey on the first appeal, that "the deceased, formerly owned the derrick, the breaking of which resulted in his death, using it in a quarry operated by himself. He sold it to the appellant * * * and he assisted in putting it up." The jury find that for four or five years he had been using the derrick in his own quarry, about three hundred yards distant from the quarry of appellee; and that but two days before the accident he had sold it to appellee, and assisted in erecting it in the place where it broke down. One of the braces of the derrick was set upon a ledge of rock, and the other was fastened to a stump. The deceased assisted in fastening them both, and knew of their condition before and after they were so fastened. At the time of the accident the employes were lifting a stone with the derrick, a smaller stone than the deceased had often lifted with the same derrick in his own quarry. While they were moving the stone he came out of the power house, where he was employed as engineer. He laid his hand on the stone, which at the time was suspended in the air, and he was pushing it when the brace fastened to the stump broke at or near the Hill et al. v. Swihart et al. stump, and fell, striking and killing the deceased. He had observed some time before that this brace needed strengthening, and had then said that he would put a strip of iron upon it to make it stronger. It is even more clear here than it was on the former appeal that, while the appellee was no doubt at fault in using an old and unsound derrick in lifting and moving stones too heavy for its capacity, yet the deceased, having built that derrick, and used it for years in his own quarry; having sold it to appellee, and assisted in setting it up in appellee's quarry; having also observed and proposed to repair the weakness at the very part that afterwards broke, and thus caused his death; having, moreover, at the time of the accident, turned aside from his proper duties as engineer, and assisted in pushing the stone that broke down the derrick, must be held to have had equal, if not better, opportunities of knowing the condition of the machinery that caused his death than the appellee, and so to have assumed all risks of danger to himself. See authorities cited on former appeal, Big Creek Stone Co. v. Wolf, supra. Judgment affirmed. HILL ET AL. v. SWIHART ET AL. [No. 18,160. Filed September 21, 1897.] SPECIAL FINDINGS.-Sufficiency Of.-Presumptions.-Presumptions or intendments are not available to support a special finding, but the facts in issue must be stated with reasonable certainty. p. 323. SAME.- Sufficiency Of.— Presumptions.— Liens.--- Where judgment creditors claim that the lien of their judgments are superior to the lien of a mortgage, and the special finding in the case does not disclose in what county or court such judgments were rendered, the Supreme Court will not presume on appeal that the judgments were rendered in the county in which the real estate is situated, and hold same to be liens on such real estate, under section 617, Burns' R. S. 1894 (608, R. S. 1881). p. 323. Hill et al. v. Swihart et al. EXECUTION SALES.-Sheriff's Certificate.-A certificate of purchase, to lands sold at an execution sale, will not pass title to the real estate where no deed has been executed after the lapse of the year allowed for redemption. pp, 323, 324. From the Fulton Circuit Court. Affirmed. Conner & Rowley and Enoch Myers, for appellants. G. W. Holman and R. C. Stephenson, for appellees. JORDAN, J. This action was instituted by Mary Swihart, one of the appellees, to foreclose a mortgage against certain real estate therein described, situated in Fulton county, Indiana. The note and mortgage in suit were executed by appellees, John A. and Granville M. Tatman. Appellants, Hill and Lewis, with others, were made parties defendant to the action as alleged judgment lien holders upon the real estate in controversy. Upon the issues joined between the several parties the court made a special finding of the facts, and stated its conclusion of law thereon. By the facts found it appears that the mortgaged premises were originally held and owned by one William Strand by a patent from the United States. In 1877 the land was conveyed by Jacob C. Spohn, who was then the owner thereof, to Peter Smith, the latter executing a mortgage thereon to Spohn to secure certain notes executed by him to Spohn. In April, 1881, one Robbins, who held this mortgage, commenced an action in the Fulton Circuit Court to foreclose the same, making John A., Granville, M., and Rebecca Tatman, and Mary Gringrich parties defendant, and they filed answers and cross-complaints in said action; and such proceedings were had therein that the court found that certain amounts of money were due to these parties respectively, and that the same were vendors' liens, and superior to the lien of the mortgage held by Hill et al. v. Swihart et al. Robbins; and upon decreeing a foreclosure in favor of the latter, it was adjudged that his judgment lien was subject to the several liens held by the aforesaid defendants. In 1882, Smith conveyed by a quitclaim deed an undivided one-tenth of the land in question to Jacob S. Slick. The land having been sold for delinquent taxes, the auditor of Fulton county, on August 6, 1883, executed a tax deed to William M. Tatman. On August 20, 1886, Mary Gringrich, who does not ap pear to have had any interest or title to the lands in dispute, or claim thereto, save the lien declared in her favor in the action instituted by Robbins, conveyed the land by quitclaim deed to John A. and Granville M. Tatman. In September, 1891, Jacob Slick conveyed the undivided one-tenth of the land in question to William M. Tatman. In February, 1892, William R. R. Tatman, who does not appear to have had any title or interest in the land, conveyed it by quitclaim deed to John A. and Granville M. Tatman. On April 24, 1894, Earl Copeland recovered a judgment against John A. and Granville M. Tatman, which was afterwards assigned to the appellant, Hill. On September 26, 1894, William Levi recovered a judgment against the last mentioned Tatmans, which was assigned to appellant Lewis. On November 20, 1894, one Harding also recovered a judgment against John A. and Granville M. Tatman. Where, or in what court or county, these last mentioned judgments were recovered, the finding does not disclose. The judgment in favor of Robbins in the foreclosure suit remains unsatisfied. In April, 1895, the Tatmans, as stated in the findings, had their judgments "renewed" in a proper proceeding, and an order of sale decreed, and thereunder, on June 2, 1895, the land was sold at sheriff's sale to John A. and Granville M. Tatman, and a certificate of purVOL. 148-21 |