Appeal from the District Court of the United States for the Northern District of Indiana, Hammond Division; Thomas W. Slick, Judge.
Before SPARKS, MAJOR, and KERNER, Circuit Judges.
This was an action for personal injuries brought under the Indiana Employees' Liability Act,*fn1 claimed to have been sustained by plaintiff Michael Lang while in the employ of the defendant. The cause was submitted to a jury. There was a verdict for plaintiff upon which judgment was rendered, and defendant appeals.
The cause was submitted to the jury upon two charges of negligence. The substance of the first charge was that in November of 1933 plaintiff was employed by defendant as a night watchman for twelve hours per night every night in the week; that he notified defendant that the duties imposed upon him were too great for his physical and mental well-being, but was directed to perform the same duties for the same number of hours.
The second charge was that defendant should have provided additional help to perform such duties, and should have reduced the number of hours that plaintiff was required to work; that notwithstanding such notice and knowledge defendant negligently failed to provide additional help and failed to reduce the number of hours plaintiff was required to work; that as the result of such negligence plaintiff's muscles became spastic and rigid, rendering him unable to perform any physical labor; that he suffered a severe and permanent injury to his nervous system; and that in the future he will be unable to pursue any gainful employment.
After defendant's demurrer to the complaint had been overruled, it answered, controverting the allegations of the complaint and pleading assumed risk and contributory negligence.
It appears that from 1913 to 1916 plaintiff was employed by defendant as a bricklayer. He re-entered defendant's employ in 1926 and worked until 1928. After an absence of three months he was again re-employed as a laborer. In 1933, when he was fifty-seven years of age and in good health, he was employed as a night watchman. He was told that he would be required to work twelve hours a day.
His duties were to punch a time clock at various stations at the plant. Twenty minutes were occupied in making a round of the stations and the distance travelled was almost half a mile. He made eleven rounds each night. In making a round he climbed sixty steps every hour. During the winter months he fired three boilers and throughout the year lighted up seven or eight oil furnaces. He also had other duties to perform.
Plaintiff testified, without specifying any date, that: "During the time I worked there I told Mr. Lindenberger (defendant's president) 'It is too much work.' One time he promised to give me help but I never got any man to help me."
In November of 1936 he informed defendant's superintendent that he (plaintiff) was tired and that the work was too much for him. He was told to go home and take a good rest, and when he felt better, to return to his work. Plaintiff continued at his work until February 18, 1937. He has not worked since.
It further appears that on February 19, 1937 plaintiff was examined by Dr. George M. Cook, who testified that plaintiff had a light stroke that involved the left side of his body; that plaintiff had had a brain hemorrhage; that he was of the opinion that the type and the number of hours that plaintiff worked were a strong contributing factor to the cerebral hemorrhage, but that he found no underlying cause that would produce cerebral hemorrhage and nothing that he could lay his finger on as the cause of the hemorrhage.
A motion to instruct the jury to find defendant not guilty, tendered at the close of all the evidence, was denied by the court. On this appeal defendant has assigned numerous specifications of alleged errors. In the view we take of this case it shall be necessary only to consider its ...