30 Ind. App. 348 | Ind. Ct. App. | 1903
The complaint avers that the appellant is a Virginia corporation operating a factory in this State for casting and molding steel, and uses a large number of molds, a large iron hydraulic crane, and a large ladle. The molds are from' two to five feet long, two to three feet wide, one to two feet deep, and consist of an upper and lower part fastened together with clamps. These molds, elevated from five to fifteen inches above the floor, were placed side by side forming an inner and outer circle, the latter being about 150 feet in circumference. In the center was an upright iron or steel shaft, about fifty feet high constructed so as to revolve. Attached to this shaft was a steel crane, about twenty-five feet in length, consisting of two arms swinging from the shaft, and six or seven feet apart at the outer end. Attached to these ends, over the molds, was a large ladle used to hold melted steel which was poured from the ladle into the molds. At the time of the injuries there had been left, after the molds were filled, a large amount of melted steel or slag which appellant “carelessly and negligently poured out upon the ground immediately outside the outer circle of molds and in close proximity thereto, and which spread, ran over, and covered a large space of ground.” Appellant, through its agent Lawrence Howard, had immediate control over the place and workmen at the
The jury, in answer to interrogatories, find that when injured appellee had been in appellant’s employ seven years, and had been employed in the casting and molding department about three years, and was working in this department when injured. He was well acquainted with the location of all the machinery, tools, and appliances used in this department, and with the manner of their operation and use. The business was necessarily attended with danger to employes, and with these dangers appellee was acquainted. By the order of Lawrence Howard, appellee at the time in question placed himself in a position of danger, lie knew at the time he was injured that he was in a position of danger if the crane and ladle were moved. He could have known, by the exercise of reasonable care, that the position he took before his injury was a dangerous one if the crane and ladle were moved without warning. He knew the pool of slag had been drawn from the ladle, and the place on the floor where the pool was. There is no evidence that appellant was guilty of any act of negligence in putting the pool of slag on the ground or floor of the casting or molding department. Dimng all the time appellee had worked at the factory it had been the custom to cast the molten slag upon the floor, and at and prior to appellee’s
The errors assigned are, overruling appellant’s motion for judgment on the answers to the interrogatories, and overruling the motion for a new trial.
It is argúed that the complaint charges two acts of negligence on the part of appellant, acting conjointly, as the result of which appellee was injured; and as 'the jury find that there was but one act of negligence proved, there can
It is true the complaint avers that appellant was negligent in putting the slag on the ground, or floor, near the molds, and that it negligently caused the crane and ladle to be, pushed without warning and with great force against appellee. But the injury complained of, as above set out, did not necessarily result from being struck by the crane and also from coming in contact with the molten slag or steel, lie avers he was injured by being thrown into the slag, and he also avers an injury which was not necessarily caused by the molten metal, but which may have been caused wholly, from being struck by the crane. It was only necessary that he should prove as many of the facts averred as amounted to or constituted 'a cause of action.
In Terre Haute, etc., R. Co. v. McCorkle, 140 Ind. 613, cited by appellant’s counsel as decisive of this case, “the particular negligence complained of as the cause ,>f appellee’s injury consisted of two separate defects in a box car.” And it is there held that “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.” But in the case at bar the averments of negligence concerning the pool of slag might be omitted from the complaint and there would still remain a cause of action. The injuries complained of did not necessarily result from both acts of negligence acting conjointly. Nor do we think the complaint avers no injuries to appellee except such as were produced by coming in contact with the molten metal. See Standard Oil Co. v. Bowker, 141 Ind. 12; Terre Haute, etc., R. Co.
It is further argued that the answers show that appellee was guilty of contributory negligence, and assumed the risk. It appears appellee had been in appellant’s employ seven years, and had been three years in the department where he was at work when hurt; that he was acquainted with the appliances and machinery and with their use, and was acquainted with the dangers incident to his employment. It is true the jury find that appellee knew that the crane and ladle were liable at any time to be moved in such a way as to. pass over the molds on' which he stood, and in that event that he would be struck with the crane and ladle if he remained, there. But they also find that he knew he was going into a place of danger, if the crane and ladle were moved without warning. There is no finding that he went into a place that was, in and of itself, necessarily dangerous. There is evidence that it was the custom and duty of the foreman to see that all were off the molds and out of danger before he would give the order to move the crane and ladle, and that he gave the order at this time without giving any warning. The jury also find that it was not necessary to go upon the molds to get the clamps and wedges, and that he could have gotten them without going upon the molds. But no presumptions can be indulged in aid of the answers when it is sought to overthrow the general verdict. There may have been some other method of removing the clamps and wedges, but we can not presume that it was any the less dangerous than the method employed. And from a consideration of the evidence upon this point the jury might have concluded that while the clamps could be removed without going upon the molds, yet, in removing part of the clamps, there was no' way in which the work could be more safely done than by going upon the molds'. It is also found by the jury that appellee was ordei*ed to go upon the molds and get the
Where a person “has within his own control the manner of using an obviously defective tool, and the means of securing safety, if he chooses to employ them, if he neglects the means of security to himself he elects to take the risk.” Jenney Electric, etc., Co. v. Murphy, 115 Ind. 566. But in the case at bar it can not be said from the findings that appellee neglected to employ means of safety which were within his own control. The movement of the crane was not under his control. He was not injured while using in his own way any appliance the defect of which was equally open and obvious to both parties. He was in a place where he Avas ordered by the foreman to go. He kneAv it was a place of danger if the crane and ladle were moved without Avarning, and he kneAv they were liable to be moved at any time. But there is nothing in the findings from which it can be said that he was bound to know they were liable to be moved at any time withoxrt warning.
In the fourteenth instruction the court said to the jury: “Consequently, if you find from the evidence in this ease that Thomas Bichards was employed by the Gould Steel Company to work in the molding and casting department, and to obey the orders of the foreman of that department, who was Lawrence Howard, then and in that event the said Bichards Avas not required to have any better knowledge of the condition of the machinery and appliances than he Avonld derive from a reasonable and careful exercise of his sight and hearing; and if you find that under these circumstances, and Avhile in the line of his duty, and obeying the orders of the foreman, the said Bichards, without any contributory negligence on his part, Avas burned and injured by the negligence of defendant, as alleged in the complaint,
Objections of a similar nature are also made to other instructions given. But in this case it is not so much the actual condition of machinery and appliances as it is the use of such machinery and appliances. Complaint is not made of some previous negligent act of appellant, but of a negligent omission of duty at the time of the injury. It is not altogether a question of whether appellee had actual knowledge of the dangerous conditions surrounding him. Appellee could not be held to anticipate that while he was engaged in the work he was ordered to do appellant would do any negligent act. But for this negligent act, done at the time, and which appellee could not anticipate, the accident would not have happened. Thus, in the seventeenth instruction, the court correctly told the jury: “If you find from a preponderance of the evidence that Lawience Howard was defendant’s foreman in the department where plaintiff worked when he was injured, and that plaintiff was required to act upon the order and direction of such foreman, and you find that such foreman ordered plaintiff to go upon the molds to release the clamps, and that in compliance with such order he did so, and that while so upon said molds in the discharge of his duty, and without any other notice or warning to plaintiff, said foreman directed plaintiff’s co-employes to move the crane and that they did so move said crane and struck plaintiff with same and knocked him into the pool of slag, and you further find that after such order to the men to move the crane was given, plaintiff could not, by the rise of reasonable and ordinary care, have escaped from his position and avoided being struck by said crane and avoided his injury, you may find for the plaintiff.”
Upon a careful consideration of all the instructions we
From the whole record it appears that the case was fairly tried, and a correct conclusion reached. Judgment affirmed.