28 Ind. App. 479 | Ind. Ct. App. | 1902
Action for personal injuries, in which appellee, plaintiff below, recovered judgment for $2,500. The cause was commenced and put at issue in the Vanderburgh Superior Court and upon change of venue was tried in the Warrick Circuit Court. The errors assigned are: (1) That the court erred in overruling appellant’s motion to make the amended complaint more specific; (2) in overrul
The amended complaint, in substance, charged that appellee, Henry Feulner, on May 6, 189©, was employed by appellant, in its factory, to operate a boring machine, and that in so doing he was injured by having his left arm caught, torn, and injured by said boring machine; that the boring machine was defective and unsafé, in that the spring supporting it was worn out, weak, and broken, whereby said bit was permitted to drop and fall from its proper position, causing tbe dangers incurred in operating said machine to be greatly increased, which condition was known to appellant and unknown to said Henry Eeulner; that Henry was but fourteen years of age, of which appellant had knowledge, notwithstanding which he was employed and permitted to operate the dangerous machine without instruction or warning as to the manner of its use, or the dangers incident thereto. It was an upright boring machine, the shaft of which, to which was attached the bit, was raised and lowered by a foot lever; and that by reason of the weak condition of the spring supporting the shaft it was not held in proper position, and, when the foot of the operator was taken off the lever, the shaft would hob up and clown, making it dangerous to operate, which appellant knew; the shaft was attached to a pulley around which was a belt operating tbe shaft at a bigh and dangerous speed; the bit was fastened into tbe lower end of a journal in the Shaft by a setscrew, the bit extending below the journal its full length; there was no guard or protection for said shaft, journal, bit, and set-screw, as provided by the laws of the State of Indiana; and that at the date of the injury they were wholly unguarded and unprotected, which could have been done at small cost, without in any way interfering with the operation of said machine.
The motion to make the complaint more specific asked that it be made to show in what respect the machine should be guarded or protected, the manner of the guarding, the kind of guard, and the manner of placing the guard. The complaint gives a complete description of the machine,, among other things showing that the set-screw and boring bit, when the foot of the operator was off the lever, extended down from the other parts of the machine and was wholly exposed and unguarded. It further alleges that a guard could have been placed around these parts without interfering with the operating of the machine. It avers that they were wholly unguarded, in violation of the statute law of the State. This was a sufficient compliance with the statute. §341 Burns 1901, §338 Horner 1901. “The complaint shall contain: * * * Second, A statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.” The averment that the machine was unsafe, and was without any protection, in violation of the statute, was sufficiently specific, and it was not error to overrule the motion.
The demurrer to the complaint was for want of facts to constitute a cause of action. We have substantially set out
Appellee’s right to recover is based upon three distinct grounds, viz.: (1) Negligence in permitting a defective machine to be used; (2) negligence in failure to instruct appellee as to the danger thereof; (3) negligence in failing to have the machine guarded.
Counsel for appellant insist that there is no negligence charged by reason of not instructing the employe, because no necessity for such instruction is shown, and that the law of Indiana did not require the particular machine involved in this case to be guarded; that all three of the causes of' action must be properly set out, and, unless this is done,, the complaint is bad. This position is not tenable. “A plaintiff may allege more facts than are essential to constitute a cause of action, and in such case it is ordinarily held that he need only prove the substance of so many of them as constitute a cause of action to entitle him to recover, and the balance of them may be regarded as immaterial and surplusage.” Terre Haute, etc., R. Co. v. McCorkle, 140 Ind. 613, 623, citing Long v. Doxey, 50 Ind. 385. It is stated in the case just cited: “When a cause of action depends on two or more facts, no proof short of' proving the substance of each and every one of them will warrant a recovery. That is, if the cause of action consists-of and depends on the establishment of three facts and the proof only establishes two of them the evidence is not suffi
At the time of the injury and of the bringing of this action, under the statute, it was not necessary to allege a want of contributory negligence upon the part of appellee; yet, following the allegations of injury and the causes thereof, it is averred that the injury complained of'was caused without' fault or negligence on his part. Were an averment of want of contributory negligence necessary, this would be sufficient. It is alleged that the unsafe condition of the machine was known to appellant and unknown to appellee. This was a sufficient allegation to rebut actual knowledge and to repel imputed knowledge. Evansville, etc., R. Co. v. Duel, 134 Ind. 156, and cases cited.
It is also urged against the complaint that the allegations show that the appellee was in the full possession of his faculties, and with a full understanding of the alleged dangerous nature of the machine he assumed the risk incident to its operation. He certainly knew it was without guards. If the action were based solely upon the employer’s neglect to perform a common law duty, or, if there was no valid distinction between neglect of a common law duty and the neglect of a specific statutory duty, the point would be well taken; but there is a distinction, and under the recent cases of Davis Coal Co. v. Polland, 27 Ind. App. 697; Island Coal Co. v. Swaggerty, 27 Ind. App. 697, the appellee did not assume the risk arising from the appellant’s1 disregard of statutory duties.
It is claimed by appellant that the matter of guarding the machines of a factory is left to the discretion of the chief factory inspector, and that as there is no allegation that he has not performed his duty, the presumption is that he did perform his duty, examined the machine, and found
Counsel for appellant consider together three errors assigned, namely, the refusal of the court peremptorily to instruct the jury to return a verdict for the defendant; and the second and third causes presented for a new trial, to wit, that,the verdict is contrary to law, and not sustained by sufficient evidence. Appellee lacked twenty-four days of being fifteen years old when he was injured, and was engaged in his usual, ordinary work. He was a bright, intelligent boy, and had worked in the factory six months before he received his injury; had worked this machine “on and off” for two months, about one-half of the time. He was put to work by his brother, whom he had seen operating the machine, who “just showed him how to bore, and told him they had to be bored in this way”. There were no witnesses to the accident. Appellee’s account is substantially as follows: “The machine had worked all right before, so far as I know; it worked up and down by foot treadle, in response to pressure of my foot; it was all right; it worked nicely so far as I know; had observed it closely for two months; nothing to prevent my seeing machine in operation; nothing to prevent seeing under and about it, under the bit. Unless the bit caught my sleeve on the side and pulled it in, or my'hand got under it, there was no way to get hurt that I know of”. He testified that his sleeve was not wide; was buttoned at
The employment in appellant’s factory of an infant fourteen years of age, is authorized under the act of 1899, supra. Appellee was familiar with the machine. The open character of its construction, the exposure of all its parts, his experience in its use admonished him fully of the danger incident to its operation. Appellant could not have told appellee what he did not already know if he possessed the intelligence of ordinary boys of his, age. Although young, he was not inexperienced; he was competent to understand his work, and he therefore stood upon the footing of an experienced adult. There was no necessity for one working the machine to place an arm or hand under the bit, or to come in contact with it. Appellee says it worked ail right. If there was defect it should appear that such defect caused the injury. It does not so appear. Appellee testified that he was not looking at the bit when he received his injury. Erom his own testimony, there seems to be no escape from the conclusion that appellee was guilty of contributory negligence. As pertinent to and illustrative of
The verdict is not sustained by sufficient evidence. Other alleged errors need not be discussed.
Judgment reversed, with instructions to sustain the motion for a new trial.