
    New Castle Bridge Company v. Steele.
    [No. 5,717.
    Filed June 6, 1906.]
    1. Trial. — Pleading. — Proof. — Variance—Negligence.—Where the complaint alleges injuries caused by the negligence of defendant in the use of rotten and insufficient timbers in a derrick and the proof shows injuries caused by the breaking of an iron hook connecting a guy wire to the top of the mast, there is a fatal variance, p. 195.
    2. Appeal and Error. — Answers to Interrogatories. — New Trial. —Where the record on appeal is such that the Appellate Court cannot say that plaintiff cannot recover, a new trial will be ordered, although technically the defendant would be entitled to judgment on the answers to the interrogatories to the jury, p. 195.
    From Marion Circuit Court (12,494); Henry Olay Allen, Judge.
    Action by William E. Steele against the New Castle Bridge Company. From a judgment for plaintiff, defendant appeals.
    
      Reversed.
    
    
      Elmer E. Stevenson, for appellant.
    
      John M. Bailey and W. E. Bailey, for appellee.
   Roby, J.

Action by appellee for tbe recovery of damages on account of personal injuries alleged to have been caused to him by appellant’s negligence. Tbe complaint is in four paragraphs; tbe issue was made by general denial. Trial resulted in a verdict for $2,000. Appellant’s motion for judgment on tbe answers to interrogatories, notwithstanding tbe general verdict, was overruled, as was also its motion for a new trial.

Appellee was an employe of tbe appellant as a laborer and was injured by tbe fall of a derrick. Tbe answers to interrogatories state that tbe derrick fell because of tbe breaking of an iron book connecting a guy wire to tbe top of tbe mast. Tbe negligence alleged in tbe complaint is that the timbers of tbe derrick were rotten and insufficient. In that connection it is averred that tbe derrick bad, by reason of long use, become weak, cracked and rotten in all its parts, including attachments at both ends, but if such averments can be considered as counting upon tbe defective hook, such construction will not avail appellee, there being no evidence that tbe defect in tbe book was discoverable by inspection. Tbe jury, in answer to interrogatories, say that tbe books were in good condition when put up; that they bad been in use about two years, and that it was ordinarily safe to use said books for from twelve to fifteen years, and that they were apparently in good condition just before tbe accident. There being no negligence shown in regard to tbe inspection of tbe attachment which broke, there was no basis for a verdict, an employer not being bound to guard against dangers of a character he cannot forsee, in tbe exercise of reasonable care. Lake Shore, etc., R. Co. v. Kurtz (1894), 10 Ind. App. 600.

We are not prepared to say that tbe appellee should not recover, and for that reason a new trial . will be ordered.

Judgment reversed, and cause remanded, with instructions to sustain appellant’s motion for a new trial and for further consistent proceedings.  