57 Ind. App. 576 | Ind. Ct. App. | 1914
Lead Opinion
This is an appeal from a judgment in appellee’s favor in a suit for personal injuries received by him while in the employ of appellant and operating a ripsaw alleged to have been improperly guarded at the time of his injury.
The action was originally brought in the Superior Court of Vanderburgh County and afterwards venued to the War-rick Circuit Court. • The complaint filed in the latter court shows among other things that appellee was nineteen years of age when injured; that the appellant is a corporation engaged in the manufacture of furniture; that in its business it operated a ripsaw which, when in operation, ran at a high and dangerous rate of speed and was dangerous to the hands and limbs of the person operating it; that appellee under his employment with appellant ran and operated such ripsaw from February 18, 1910, until March 2, 1910, when he was injured. The negligence charged is, in substance, as follows: The appellant at the time of appellee’s injury, neglected and failed to properly guard the ripsaw as required bjr the statutes of Indiana, in this, to wit, the front part of the guard used by appellant on said saw was old, worn and broken and the setscrew thereon used for adjusting the guard to or near the teeth of said ripsaw was broken
The allegations as to the manner in which appellee received his injury are substantially as follows: Appellee’s foot slipped on the floor where he was standing, causing him to lose his balance. The front part of said guard was then back and out of position leaving the teeth of the saw exposed and unguarded as aforesaid, and ax>pellee, in an attempt to catch and save himself from falling while so unbalanced, threw out his left hand and it struck the exposed teeth of such unguarded ripsaw, and such saw so cut and lacerated the forefinger of his left hand that it had to be amputated. If said ripsaw had been properly guarded appellee’s hand would have hit the guard instead of the teeth of such saw. Appellee’s injuries wore received by reason of the negligent acts of appellant as above set out and not otherwise.
A demurrer to the complaint, for want of facts, was overruled. A trial by jury resulted in a verdict for appellee for $2,000. Appellant’s motion for a new trial was overruled and judgment rendered on the verdict. The errors assigned and relied on for reversal are: (1) “The Superior
However, in the discussion of several of the rulings presented by its second assignment of error appellant assumes that the complaint proceeds on a given theory, which it now seeks to have this court adopt. Whether such rulings constitute error depends on whether this court adopts such theory. It therefore becomes important to determine on what theory the complaint proceeds. Appellant contends that it proceeds on the theory that appellant discharged the statutory duty which required it to furnish such guard in the first instance but afterwards allowed it to become defective and promised appellee to make the necessary repairs, and failed to do so. It is then insisted that such being its theory it should have averred that appellee relied on appellant's promise to make such repairs, and should also have
Appellee’s instruction No. 12 is not subject to the criticism made against it.
of ability to earn wages would of itself more than equal the sum allowed, to say nothing of his pain and suffering and other proper elements of damage. Under such a state of the evidence the decisions of the Supreme Court and this court stand in the way of a reversal of the judgment on such ground. Terre Haute, etc., Traction Co. v. Mayberry
"We find no available error in the record and the judgment is therefore affirmed.
Rehearing
On Petition for Rehearing.
Other reasons for rehearing are suggested, but as to them we deem it unneecessary to add to the original opinion.
Petition for rehearing overruled.
Note. — Reported in 105 N. E. 258; 107 N. E. 27. As to employe’s right of action for employer’s violation of statutory duty as to guards about machinery, see 9 L. R. A. (N. S.) 381. As to whether master’s duty to guard machinery is a delegable one, see 54 L. R. A. 71; 17 L. R. A. (N. S.) 568. As to the duty of a master as to machinery and appliances generally, see 33 L. Ed. U. S. 656; 37 L. Ed. U. S. 728 ; 38 L. Ed. U. S. 597; 40 L. Ed. U. S. 767. As to whether servant may assume the risk of dangers created by master’s negligence, see 4 L. R. A. (N. S.) 848 ; 28 L. R. A. (N. S.) 1215. As to servant’s assumption of risk of master’s breach of statutory duty, see 6 E. R. A. (N. S.) 981; 19 L. R. A. (N. S.) 640; 22 L. R. A. (N. S.) 634; 33 L. R. A. (N. S.) 646 ; 42 L. R. A. (N. S.) 1229; 4 Ann. Cas. 599; 13 Ann. Oas. 36; Ann. Cas. 1913 C 210. As to what is excessive verdict in action for personal injuries not resulting in death, see 16 Ann. Cas. 8; Ann. Cas. 1913 A 1361.