32 Ind. App. 398 | Ind. Ct. App. | 1904
Appellee sued and recovered judgment for $1,G50 in the court below, for injuries sustained by him' while working for appellant on á frizzer which was not properly guarded, and which injuries would not have happened had the machine been so guarded. The action is based upon a statutory liability, §108^ Burns 1901, §5169k ITorner 1901, Acts 1899, p. 231.
The errors relied upon for reversal are the action of the court in overruling appellant’s demurrer for want of facts to the complaint, and its motion for a new trial.
The complaint is in one paragraph. It contains, among 'other things, the following: “That .during all of said time said company was required by law properly to guard its machines and said frizzer, and to put upon them and it proper safeguards; that said guards were so required for the purpose of protecting from injury the men who worked on such machines; that on the 24th day of October last the factory in which said machines were used was inspected by the officer authorized and directed by law
The objection made to the complaint is that it “does not travel on any definite theory.” It is claimed that it is uncertain. “It is uncertain from the allegations whether the plaintiff attempted to allege that no guard was furnished, or that the machine was guarded by a defective guard. If the purpose was to allege the furnishing of a defective guard, it was plaintiff’s duty to allege specifically in what particular the guard was defective, so as to give notice to appellant of the exact theory upon which the appellee relied for recovery. The allegation that the machine was- not properly guarded is pleading a conclusion and not an averment of fact.”
Uncertainty in a complaint is reached by a motion to make more specific. Cleveland, etc., R. Co. v. Wynant, 119 Ind. 539. If more than one cause of action is stated,
It is averred in the complaint “that no guard of any kind was provided by the defendant to be used by him while he was working at and operating said machine on said work, nor did he have a guard which he could use on said frizzer while he was doing the work he was then doing, and said machine was then wholly unguarded, all of which the defendant knew;” that the injury was sustained without any fault or negligence on the part of the appellee, and was due wholly to the fault of the defendant. In the second paragraph of the answer the appellant says that it “had provided for use on said machine, at and before the time of his alleged injury, a guard to be placed upon said machine, and which before the time of said injury had been placed thereon, and which guard was the best known for use upon said machine, so as to be full and ample protection to plaintiff while working with said machine; * * * that said plaintiff would not have been injured if he had obeyed the instructions of this defendant in the use of said guard.” In the third paragraph of the answer the appel
The court gave instruction sixteen, in which it said: “If you further find that at the time such inspector or deputy gave such order, or at any time before such injury, there was provided by defendant or its employes at its instance a suitable guard for such machine, which would protect the plaintiff from such injury while doing the work at which he was engaged when -injured,” etc. Also instruction seven, in which it said: “You may consider whether or not there was at hand a suitable guard which ho had a right to use, by the use of which he might have avoided the injury.” And in instruction eight the following language is used: “Notwithstanding it was the duty of the defendant, at the time plaintiff received the injury complained of, to provide a suitable guard for plaintiff’s use and protection while operating the machine by which he was injured.” In instruction seven the court told the jury, “If you find from the evidence that a guard,- and which was a proper kind of a guard;” also, “If such a guard was made in the manner and under the circumstance as set out in this instruction, and if it could have been used by the plaintiff with safety at the time he received the- injury,” etc. All said instructions were given at appellant’s request.
In the admission of evidence the counsel for appellant said, with reference to the guard furnished: “We want to show that the guard could have been used, and it was his duty to use it for the purpose of making application
These extracts from the record show that the case was tried upon the theory, not that no guard was furnished, but that it was the duty of the appellant properly to guard the frizzer. When the facts pleaded may be construed as proceeding upon different theories in the statement of a cause of action, the construction placed upon them by the trial court will be the theory upon which they will be considered by the court upon appeal. Callaway v. Mellett, 15 Ind. App. 366, 57 Am. St. 238. The complaint states a good cause of action upon the theory that no proper guard was furnished or that no guard was furnished, and is therefore sufficient to withstand a demurrer. Kreag v. Anthus, 2 Ind. App. 482.
Appellant discusses the following reasons set out in the motion for a new trial, viz.: Thé verdict of the jury is not sustained by sufficient evidence; it is contrary to law (under these specifications appellant contends that the evidence of the appellee shows that his own conduct contributed to his injury) ; that the court erred in refusing to give as the law of the case instructions two, three, ten, and eleven, and each of them, requested by appellant, and in giving to the jury instructions numbered five, nine, ten, twelve, and fourteen, and each of them.
Said instructions two, three, ten, and eleven were each of them addressed to the question of appellee’s contributory negligence. In so far as they correctly stated the law, the substance of them was covered by others given. The instructions to the jury upon this question were fair and full.
Said instruction five, given to the jury, is as follows:
Appellant contends that the action was upon the theory that no guard Was furnished/, and that appellee was not entitled to recover upon the theory that no proper guard was furnished, and that he was • not, therefore, entitled to the foregoing instruction, which recognized his right of recovery in a ease in which a guard had been furnished which was not a proper one. The action was upon the theory that no guard had been furnished to he used on the work then being done by appellee; in other words, no proper guard. We can not admit appellant’s premise as to the theory of the complaint.
Instruction nine is as follows: “It was the duty of the defendant properly to guard the machine on which the plaintiif was injured for every kind of work he was required to do on it, if it could have been guarded. If the defendant did not properly guard said machine for every kind of work the plaintiff' was required to do upon • it, if it could have been so guarded, and if it was not
We bear in mind the difference between the assumption of risk and negligence. The former being the subject of contract; the latter is not. They are separate and distinct. Davis Coal Co. v. Polland, 158 Ind. 607; Buehner Chair Co. v. Feulner, 28 Ind. App. 479.
A machine being one well known and in common use, in good repair, without defect, the danger necessarily incident to its use is included in the assumption of risk, and not in negligence. The danger necessarily incident to the use of the machine in question without a guard is an assumption of risk. If in so using it appellee used care reasonably commensurate with the risk assumed to avoid injury, he can not be charged with negligence. Narramore v. Cleveland, etc., R. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68; 20 Am. & Eng. Ency. Law (2d ed.), 112, 116.
Instruction ten, given, reads: “It was not the duty of the plaintiff to furnish a guard or any part of the same to be used on the machine on which he was injured, nor was it his duty to ask the defendant properly to guard such machine for the various kinds of work he was required to do, nor to complain to it because it was not so guarded.” There was no error in giving this instruction. It was the duty of the appellant properly to guard this machine. This duty is not dependent upon appellee’s request. §7087i Burns 1901; Davis Coal Co. v. Polland, supra; Coal Co. v. Estievenard, 53 Ohio St. 43, 40 N. E. 726.
Instruction twelve tells the jury, in substance, that if the appellant had instructed the appellee as to the adjustment of the guard and the operation of the machine in doing other work than that which he was doing when hurt, and if he discovered when he understood how to do said work last mentioned that the guard should be readjusted, then he was not required to do anything in the way of readjustment of the guard or in connection with the work he intended to do until or unless he was further instructed by the appellant. Against the twelfth instruction it is urged that it proceeds upon the theory that appellee was an inexperienced employe, and entitled to be instructed as to the particular work he was required to do, whereas the theory of the complaint is that he was an experienced employe of mature years. This being the case, appellant did not aver he.had no duty in the way of instructions; that therefore the instructions were not pertinent to the 'issue. This objection is fairly met in the fact that appel
In addition, the court, at the request of the appellant, gave instruction thirteen, in which it is said: “If you find that the defendant by its proper employes gave to the plaintiff full instructions as to the proper use of the machine mentioned in the complaint * * * then I instruct you that it was his duty, at and before the time he received the injury, to obey such instructions * . * * and if he failed to do so, and such failure contributed to the injury sustained by the plaintiff, he can not recover in this action.” Appellant had the right to instruct appellee as its servant, and to require him to obey the instructions without reference to "his experience or inexperience. The same criticism is made of instruction fourteen as of the twelfth.
It is contended that it was appellee’s duty to adjust the guard, and when he discovered that it must be readjusted before he could do the work he desired to do it was his duty to undertake to readjust it without further instructions from appellant. At least, if he could not readjust the guard, he could havé called upon appellant’s servants to do so for him, and that his proceeding to do the work without attempting to readjust the guard, and without calling for assistance in the matter, was negligent conduct on his part. It appears that the guard was not suitable for the work in hand, but appellant contends that it could, have, been readjusted with material on hand, and made to answer the requirement. The statute makes it the duty of the employer and not the. employe properly to guard dangerous machinery.
To appellee, while a witness in his own behalf, the following question-, over the objection of appellee’s counsel,
Appellant insists that the court erred in permitting the introduction in evidence of a letter written by D. II. MeAbee, chief inspector of the State of Indiana, to the Blanchard Novelty Works, of Shelbyville, Indiana. The said letter, in substance, notified the Blanchard Novelty Works to comply with §§2, I, and 9 of the acts of 1899 (Acts 1899, p. 231, §Y08lb et seq. Burns 1901), by requiring of the novelty works that it should provide guards for all ripsaws, joiners, and frizzers, and also stating that if-such requirements should not be complied with within twenty days of the date of the letter, which bore date of October 28, 1901, legal proceedings would be commenced against said firm. The first objection urged against the introduction of the letter is that it was not addressed to the appellant, and did not purport to be a notice to the appellant, and was therefore inadmissible as against the appellant. The second objection to its introduction was that the statements and declarations of the state factory inspector are not competent evidence in any way against the appellant, it not being bound by the ex parte declarations of the state inspector. In support of
The court refused to permit one Krupplr, a witness for appellant, to answer the following question: “I will ask you if at any time you heard any complaint from the plaintiff. that that bolt was too short, or anything of that kind, or that this guard could not be properly adjusted to the machine to do any kind of work that he had to do ?” and refused to permit the witness to state in response thereto that appellee had made no such statement or complaints. This action of the court could not have prejudiced the rights of appellant, for appellee himself testified that he never informed anybody that the bolt of the guard was not long enough, and “never said anything to them about finding me a guard.”
It is claimed that it was error to permit appellee to ask said witness Krupplr the following question: “Do
It is claimed that error was committed ixx refusing to permit said witness Ilrupplr to answer the question, “What was the duty of a man avIxo operates a frizzer?” And in refusing appellant’s offer to prove, in answer thereto, “That the duty of a frizzer was to oil the machine, keep it clean, and if the work to be doxxe required the use of a" guard, that it was the operator’s duty to' adjust the guard and take it off and put it on as the work which he was to do required.” Ultimately the duty of appellee Avas to be determined by the jxxry under all the facts of the case. There may have been rules of appellant which it would have been the duty of appellee to obey. "Whether he had obeyed such rules would be determined by his conduct, and not by expert testimony. What Avas said to. appellee by way of instruction Avas the proper
Appellant urges that the verdict is not sustained by sufficient evidence. We find that there is evidence fully supporting the verdict. '
ETor can we concur in the claim of appellant that the evidence shows that appellee was guilty of contributory negligence. That question was submitted ' to the jury under proper instructions, and decided adversely to appellant. In short, the jury have found the appellant negligently failed to perform its statutory duty, to the injury of appellee, and that appellee’s negligence did not contribute to his injury.
Judgment affirmed.
Henley, C. J., Eobinson, Black, and Eoby, JJ., concur. Wiley, P. J., absent.