35 Ind. App. 79 | Ind. Ct. App. | 1905
Appellee began this action against appellant and one John Rawle. The amended complaint on which the case was tried was in two paragraphs. Demurrers to each of them were overruled, and an answer in general denial filed. A verdict for $5,500 was rendered against both defendants. Motions for judgment on the interroga
Action of the court in overruling appellant’s demurrers to each paragraph of complaint is assigned as error.
Appellee’s counsel in his brief makes the following statement: “Each paragraph of complaint states a good cause of action — the first under the employers’ liability act of 1893, and the second under the common law.”
The substantial averments in the first paragraph are: That the defendant on June 18, 1901, owned and operated in Monroe county a stone-quarry and mill, including an elevated tramway with cars, the tramway being 200 feet long, 50 feet wide and 25 feet high, upon which'an appliance «called a “traveler” was operated, its use being to lift and move blocks of stone at different points; that defendant employed a large number of servants in the business, including appellee, who was a millwright and machinist, his duty being to construct and repair the machinery and appliances; that William Roberts was employed by defendant as superintendent of said plant, and had full charge and management thereof, with power to give orders and compel obedience thereto; that appellee was subject to his order, was bound to and did conform thereto'; that he was ordered by said superintendent to go upon said tramway and make certain repairs, namely, replace worn brake-blocks, said superintendent also ordering that all machines and appliances connected therewith he stopped and not used while said repairs were being made; that the traveler was stopped, and, while so standing, appellee, in obedience to said orders, went upon said tramway, in a careful manner, to make said repairs; that while thereon, in obedience to said order, said superintendent, by his orders, carelessly and negligently started said traveler in operation; that said tramway and
The second paragraph of amended complaint contains the same substantial averments of conditions as does the first, including the giving by the superintendent of the order to repair, and its observance by appellee. It is then averred: That said tramway and traveler had been negligently constructed, in that (1) a defective truss-rod was used by appellant in the construction of said tramway, which was thereby weakened and made unsafe; (2) that said entire tramway and traveler were made of timbers old, weak and insufficient for such purpose; (3) that said tramway and traveler were only sufficient to lift a stone of 20,000 pounds, all of which was well known 1» the defendants; (4) that appellee, at the time he was ordered to go upon said tramway, was working on the extension thereof, away from all machinery and appliances in and about said plant, and in a safe place, and that he was' not accustomed to work upon said tramway while said traveler was in use; (5) that the place where he was thus sent was a dangerous place when said traveler was in use, all of which was well known to the defendants; that appellee, believing that said traveler and attachment thereto' would be allowed to stand without use until the repairs should be made, went upon said tramway, in a careful manner, to make such repairs; that while thereon the defendant, without his knowledge and without warning to him, connected said traveler to a stone weighing 45,000 pounds, and lifted the same; “that by said carelessness and negligence of the defendant in so constructing said tramway and traveler, and in overloading the same by lift