36 Ind. App. 524 | Ind. Ct. App. | 1905
Appellants were engag’ed as partners in the manufacture and sale of harness, collars, etc. While in their employ, appellee, who was plaintiff below, received injuries resulting in the loss of his right hand and part of his right arm. The complaint alleges that said injuries were due to the negligence of the appellants.
As filed, the complaint was in three paragraphs. A demurrer was sustained to the first. The second proceeds upon the theory that appellee was at the time of his injury, by reason of his youth and inexperience, wholly ignorant of the dangers incident to the use of the steam cutter upon which he was set to work by appellants; that it was the duty of appellants to instruct him how to operate said cutter; that they neglected this duty, and by reason thereof he received the injury for which he sues.
The third paragraph contains substantially the averments set out in the second paragraph, and alleges, in addition, that the cutter was operated'in a basement of appellants’ factory, which appellants carelessly and negligently failed to light; that they failed to maintain sufficient openings or windows therein to admit sufficient light by which appellee could work in safety; that the operation of the cutters caused very heavy dust to rise in said basement, and that the dust increased the darkness of said basement; that by reason of said darkness the hazard of operating said cutter was increased, etc.
The cause was put at issue by general denial. The jury returned a verdict for appellee for $1,500, and with the verdict, answers to interrogatories. Over appellants’ mo
The errors assigned, question the sufficiency of each of said paragraphs of complaint, the action of the court in overruling appellants’ motion for judgment on the answers to interrogatories, and in overruling the motion for a new trial.
Did the court err in overruling appellants’ motion for judgment on the answers to interrogatories ? Appellee was a boy eighteen years of age, employed by appellants through their superintendent, Harry Keelor, to run a machine used to cut straw into lengths of-feet or more, known and designated throughout the case as the “long straw cutter,” or “hand cutter,” and run by hand. Said Keelor at the time appellee was employed fully instructed him in the safe and proper manner in which such hand cutter should be operated. Appellee was not injured by operating the machine which he was employed to operate, but was hurt on a machine ran by steam, and known as the “short straw cutter,” or “Hocking Valley Cutter No. 11,” or, as it was called by the appellee, “Ohio Valley feed cutter.” In answer to interrogatories the jury finds specially that the plaintiff at the time of his injury was about eighteen years of age; that he was not engaged in running the hand machine at the time of his injury, but was running the short straw cutter, operated by steam; that he was ordered by James Barner to work on said short straw cutter; that said machine could not be stopped suddenly; that it was hot necessary to use a paddle in feeding straw into said cutter, nor for the appellee to put his fingers at or near the rollers in said cutter. In answer to the following ques
Appellants insist that the court erred in refusing judgment in their favor, because, as they claim, said answers show: (1) that appellee assumed the risks incurred; (2) that he was guilty of contributory negligence. If either of these claims can be maintained, the court erred in denying said motion. The general verdict finds against appellants upon both of said propositions.
That the verdict of the jury is not sustained by sufficient evidence and is contrary to law are next in order in the reasons for a new trial.
The undisputed evidence shows that the appellee was employed by appellants to work in their factory on a straw cutter operated by hand, and instructed as to the manner of operating and working the same; that he was changed from such machine so operated by hand and put to work upon the one on which he received his injury, and which was operated by steam, and that while so operating said machine he received the injury for which he sues; that he was wholly inexperienced and without any knowledge as to machinery, up to the time of his employment by appellants, as appellants knew. There is evidence that he received no instructions or warning as to the dangers attending the operation of the steam cutter, and that he had no knowledge of the situation of the knives and rollers by which the straw was cut; that the knives and rollers were covered.
This steam cutter was operated not more than once or twice a week, and then only for a period of time lasting from one-half hour to one .hour. Appellants did not give personal attention and supervision to the different floors of their factory and persons employed therein, but delegated
It appears from evidence that Barner was behind with his work on the rimmer, and, for the purpose of making up his lost time, he directed appellee. and two other boys, Albert Deitrick and Frank Bradshaw, to cut short straw, which was done by the appellee and boys named. There was evidence that short straw was to be cut when it was needed in the business, and this without reference to the presence of Keelor. Keelor testified he knew they would cut short straw the morning of appellee’s injury, and he knew that Webber had been in the habit of calling boys down stairs and setting them to work on the hand cutter ever since he had been there, about five years. He
The nature of the work required those who worked about the steam cutter to wear a wet sponge over their mouths and nostrils to prevent the dust that arose from the' same from stifling them. The place in which appellee wás required to stand was so narrow that he had barely room to stand between the machine and the belt that run the same at his back. The place was insufficiently lighted. Webber told Barner to put some one to cutting short straw. Webber knew Barner was behind with his work. Barner required appellee to feed the machine. Webber said: “Send some one down to cut short straw.” He said he wanted more boys to cut short straw. While' the machine was running, and appellee was standing right where he stood when he fed it — one of the boys had gone for water — ■ Keelor looked at appellee but did not say anything to him. He was not at that particular time feeding the machine. There is a little conflict in the evidence. Where it occurs it is passed upon by the jury. Appellee assumed no risk outside of the contract of his employment. Pittsburgh, etc., R. Co. v. Adams (1886), 105 Ind. 151.
Keelor was’ the representative of the appellants, and in the room in which appellee worked he could confer authority both directly and indirectly. According to the testimony of appellee • he conferred authority directly upon Webber. He indirectly conferred authority by knowingly allowing Webber to exercise authority and making no objection thereto. At least three persons were necessary properly to operate this machine. Upon the occasion of appellee’s injury they were procured in the way customary in the factory, and in a way known to Keelor. Appellants’ work was being done in the ordinary manner. Appellee was called and assigned to the machine to forward the master’s work. Patnode v. Warren Cotton Mills (1892), 157 Mass. 283, 32 N. E. 161, 34 Am. St. 275, is a case in which the facts are very similar to those in this case, and the principle involved is the same. Under the facts disclosed by the. record, the rights of appellee are not determined by those of an employe injured by the negligence of a fellow servant. Hodges v. Standard Wheel Co. (1899), 152 Ind. 680, is not in conflict with the Massachusetts case cited.
Whether the dangers of the work were extraordinary, and the employe had had sufficient opportunity to become familiar with them, or had been instructed by some one
Instruction twenty-one, objected to, was fairly warranted by the evidence and the complaint.
The complaint is framed upon the theory that appellee, young, ignorant and inexperienced, was put to work upon a dangerous machine without any instruction, and for want of such instruction, without fault of his, he was injured. The cause was fairly tried upon this theory, and we find no error for which the judgment should be reversed.
Affirmed.