60 Ind. App. 484 | Ind. Ct. App. | 1915
Lead Opinion
Appellee recovered a judgment against appellant in the sum of $1,416.66 for personal injuries which resulted in the loss of an eye. The complaint is in one paragraph, and the averments material here, in substance, charge that in February, 1909, appellant employed appellee to operate a power-driven hammer or chisel and he continued to operate such hammer until June 9, 1909, on which day appellant carelessly and negligently ordered and directed appellee to leave his work at the hammer and go to a different part of its mill and assist another employe to chip pieces of iron and steel from mouldings and castings and, carelessly and negligently ordered appellee to hold an iron chisel while such other employe struck it with a maul or hammer; that appellee was unacquainted with such work which was different from that which he was employed to perform; that the work was more hazardous and dangerous than that which he was employed to do; that appellant carelessly and negligently failed and neglected to inform appellee of the dangerous and hazardous nature of the work that he was then ordered to perform; that by the order he was required to work with different employes and in a more hazardous place than he was accustomed to work and was required to use other and different instruments and tools from those he was employed to use; that in compliance with said careless and negligent directions of appellant, appellee went to said part of appellant’s mill and while holding said chisel and performing such work, and without any negligence on his part, was struck in the
With the general verdict the jury returned answers to interrogatories. A motion for judgment on such answers, and likewise, appellant’s motion for new trial, was overruled. These rulings are present-, ed by the assignment of errors, and it is also assigned that the court erred in overruling the demurrer to the complaint for insufficiency of facts to state a cause of action.
No questions are presented relating to the plea of the statute of limitations.
Appellant contends that the answers to the interrogatories show that appellee was familiar with the work of flogging and that there was no substantial difference in the character and manner of the work, or in the dangers incident thereto, from those of the' work appellee alleges he was employed to do and that the injury resulted from one of the ordinary hazards of such employment, assumed by appellee.
The answers do show that appellee was familiar with the duties of a flogger, but they do not show that he had any practical experience in such work. The answers also show that the work of flogging was in a general way quite similar to the work of
Dissenting Opinion
DISSENTING OPINION
I am unable to reach the same conclusion in this case as that expressed in the majority opinion. It is conceded that appellee’s case proceeds upon the theory of a temporary change of his employment, the latter employment being more hazardous than the former. I have always understood that in order to' recover on such a theory the injured party must make it appear that his injury was received on account of .a risk or danger incident to the new employment which was not present in the old. That there was in fact a new danger connected with the new work is the foundation upon which the right of recovery rests. It is averred in substance that appellee was employed by appellant to handle, manage and operate a machine called a steam hammer and chisel and he did operate said hammer from February 15, 1909, to June 9, 1909, and on said latter day he was negligently and carelessly ordered by appellant to leave his work at the hammer and assist another employe of the company to remove pieces of iron and steel from mouldings and castings. That the work was different and more hazardous than that which he was originally hired to do and appellant negligently failed to inform him of the dangerous and hazardous nature of the work he was doing when injured. The undisputed evidence and the answers to the interrogatories show that the dormer, work is styled “chipping” ajad the latter “floffanff” bv those enaaaed in. such
It is apparent to me that the work covered by his original employment was different from the latter only in degree and not in kind, and there was no change in the general nature and character of the work, only in the doing of the latter heavier tools
Note. — Reported in 109 N. E. 220, 1095. As to assumption of risk as distinguished from contributory negligence, see 98 Am. St. 314. See, also, under (1) 3 Cyc 158; (2) 1 C. J. 1156; 1 Cyc 749; (3) 26 Cyc 1513; 38 Cyc 1927; (4) 38 Cyc 1928; (5) 26 Cyc 1205; (6) 26 Cyc 1221, 1272; (7) 26 Cyc 1478, 1482; (8) 3 Cyc 348.