32 Ind. App. 442 | Ind. Ct. App. | 1903
Lead Opinion
This was an action for damages, commenced by appellee against appellants on account of the alleged death, by wrongful act of appellants, of appellee’s husband, one William E. Waymire, and of whose estate appellee is the administratrix. The complaint, which the trial court held sufficient upon demurrer for want of sufficient facts, was in one paragraph. Appellants’ answer was a general denial. There was a trial by jury, and a verdict and judgment in favor of appellee. The assignment of errors presents to the court for review the action of the trial court in overruling appellants’ demurrer to the complaint, in overruling the motion for judgment upon the answers to the interrogatories returned by the jury with the general verdict, and in overruling the motion for a new trial.
The substantial averments of the complaint are that appellants are partners engaged in the manufacture of baskets; that a part of the work of making baskets consists of stripping logs of their bark after submerging them in a vat of boiling water, from which vat they are passed to a veneering machine; “that on the 18th day of August, 1898, the large vat so used as aforesaid consisted of a basin about six feet in depth, with the top projecting about six inches from the surface of the surrounding ground, and that upon said date the said defendants [appellants] wrongfully, carelessly, and in criminal violation of the statute of the State of Indiana, suffered and permitted said vat, while filled with boiling water, to be and remain open and exposed, without any railing or safeguard or protection sur
If the complaint was drawn, upon the theory that the decedent’s death was the proximate result of the defective log hook, it would be insufficient, because it wholly fails to allege knowledge on the part of appellants, and the want of knowledge on the part of decedent of the defects charged. Creamery, etc., Mfg. Co. v. Hotsenpiller, 24 Ind. App.
Our statute (§7087i Burns 1901) provides: “All vats, pans, saws, % * . and machinery of- every description therein shall be properly guarded, and no person shall remove or make ineffective any safeguard around or attached to any planer, saw, belting, shafting or other machinery, or around any vat or pan, while the same is in use, unless for the purpose of immediately making repairs thereto, and all such safeguards shall be promptly replaced.”
It is contended by counsel that the complaint is insufficient because it does not in terms negative the exception in the statute. Our Supreme Court in Cleveland, etc., R. Co. v. Gray, 148 Ind. 266, declared the law to be that “where a breach of a statutory declaration of duty is alleged, and exceptions are found in the statutory declaration of duty, the pleader must show that the breach is not included in the exception. But if the exception is stated in a subsequent clause or section of the statute, * * then such exception should be shown by way of defense ’to the action.” The objection to the complaint in this case is therefore not tenable, because the exception is stated in a subsequent clause, and it is not intended by the statute that there shall be any exception to the’ proper guarding of the vats, etc., named in the statute, but the exception refers to the removal of the guards, after the same have been placed, for the purpose of repairing the guarded vats, machinery, etc.
The jury found, by answers to interrogatories returned with the general verdict, that there was a straight iron bar, about three feet long, which was sound and strong, provided by appellants, and which was used by the employes in moving logs on the platform, and that there was nothing
We think it proper in this connection to describe the situation of the vats and other machinery, and the usual manner of performing the work in which decedent was engaged, as found by the jury. There were two vats, in size twenty-two feet north and south, twelve feet four inches east and west, and eight feet deep. These vats were filled with boiling water, and were separated by a partition running north and south. In these vats the logs were submerged prior to being stripped of their bark and passed to the veneering 'room. These vats were immediately west of the veneering room, and separated from it only by a narrow walk. There was a platform nine feet three inches wide immediately north of and adjoining the vats, which extended east into the room where the veneering machine was located. The top of the vats was eleven inches higher than the platform. In the process of converting the logs into baskets, it was the custom to draw the logs from the vats onto that portion.of the platform which was located immediately west of and adjoining the building in which the veneering machine was located, and there strip .the logs of their bark before passing them to the veneering room. It was the custom and practice to strip the bark from the logs after they were drawn out and while the log lay in a north and south direction and practically parallel with the building containing the veneering machine. The decedent knew of the custom of doing this work at the time he received the
But the question remains, do the facts found show the decedent was guilty of negligence contributing to his injury ? The negligence of appellants in failing properly to guard the vat is established both by the general verdict and by the special findings. The general verdict necessarily establishes decedent’s freedom from fault, Tut the jury' clearly and conclusively found by the interrogatories and answers that there was an absolutely safe way to do the work, that the safe way was the customary way, and that decedent knew this safe and customary way. It seems to us that the facts found place this case squarely within the rule announced in. Consolidated Stone Co. v. Redmon, 23 Ind. App. 319, in which case this court said: “We take it to be the law that if there are two ways of performing an act, one of which is attended with peril or danger, and the other is absolutely safe from danger, and the person performing'the acts, upon his own volition, chooses the dangerous way, and is injured, he can not call upon his employer to respond in damages.”
The trial court ought to have sustained appellants’ motion for judgment in their favor. The judgment is reversed, with instructions to the trial court to sustain appellants’ motion'for judgment upon the facts found by the jury by way of answers to interrogatories.
Rehearing
After reexamining tlie entire record in this cause, we have concluded that justice would be best subserved by directing a new trial. The petition for rehearing is overruled, and the mandate heretofore made is modified as follows: The judgment is reversed, and the trial court is directed to grant a new trial. ,