52 Ind. App. 235 | Ind. Ct. App. | 1911
Lead Opinion
This is a suit commenced in the Floyd Circuit Court by appellee against appellant, a corporation operating a factory at New Albany, Indiana, to recover damages for personal injuries alleged to have been sustained while in its employ, and caused by its negligence. On request of appellee, the venue was changed to Clark county.
The amended complaint is in a single paragraph, and, omitting the formal parts, states “that on the 23d day of June, 1905, the plaintiff was in the employ of said defendant as a common laborer, in and about its factory; that on said day, while this plaintiff was so employed, and while he
A demurrer to the complaint for want of facts was over
Errors relied on for reversal are that the complaint does not state facts sufficient to constitute a cause of action, overruling the demurrer to the amended complaint, overruling the motion for judgment on the answers to interrogatories and special findings of facts notwithstanding the general vex-dict, and overruling the motioix for a new trial.
But it seems to us that, on a reasonable construction, the complaint in the present case is sufficient. From the allegations objected to by appellant as being general, it appears that appellee was employed as a common laborer in and about appellant’s factory, and that at the time he was injured he was engaged in his duties as such in the yards of the factory. Here the word “duties” refers to any work which his employment required him to perform as a common laborer. A later allegation is that the injury occurred while he was “so” standing in the yards, the word “so” seemingly being used by the pleader to refer back to the statement that he was engaged in his duties. It is true that it nowhere appears from a specific allegation what was the particular task embraced under the head of common labor, which appellee was performing.
Appellant’s counsel base their argument for the insufficiency of the complaint mainly on the decision in the case of South Bend, etc., Plow Co. v. Cissne (1905), 35 Ind. App. 373, 74 N. E. 282. On the authority of that case the complaint in the present case would clearly be insufficient to withstand demurrer for want of facts, and in so far as the opinion in the present case is in conflict with the decision in the case of South Bend, etc., Plow Co. v. Cissne, supra, that case is expressly overruled.
"We cannot say that these answers are in irreconcilable conflict with the verdict. Some of them are in conflict with each other. Appellee’s case hinges on a determination of whether the defect in the link would have been apparent to one making a reasonably careful inspection of the chain, and was a defect with knowledge of which appellant was chargeable. The jury by its general verdict found such
The answer to No. 19 tends to support the general verdict. Its effect is to nullify the findings of (13), (14) and (54), whieh are favorable to appellant. It is clearly set out in finding No. 53 that defendant failed to inspect the chain. In this it was negligent. Bearing in mind the answer to 19, as to the existence of a small discolored spot on the defective link, we can neither say that such inspection would have been useless, nor that the defect in the chain was a hidden one which defendant could not have known by the exercise of proper care, nor that the accident was inevitable
Appellant’s counsel state in their brief that their conception of the law is that an employe assumes not only the risks ordinarily incident to the business, but the risk of all -
There is evidence fairly tending to support the verdict, and, as no reversible error appears, the case is affirmed.
Concurrence Opinion
Concurring Opinion.
I concur in the conclusion reached by the majority opinion in this case, but I cannot agree to follow an unnecessary and erroneous path in order to reach that conclusion.
The complaint was challenged by a demurrer for want of facts. The statement in the complaint, “that while said plaintiff was so standing in the yards of said defendant’s factory,” lends no aid, nor does it weaken the facts, theretofore alleged, tending to show the relation of the parties, occupation and situation of the plaintiff at the time he was injured.
The facts directly stated show plaintiff’s employment by defendant, the character of the employment, the place he was employed to work (in and about defendant’s factory), and that while so employed as a common laborer in defendant’s yards he was injured. These facts cast on defendant the duty to protect plaintiff from the claimed injuries, alleged to have been caused by defendant’s negligence. The complaint was sufficient.
If it be conceded that preparation to tighten the bolt was necessary as an incident of his employment to keep the bolts tight, it should further appear that he was in a place at the time of such preparation where he might reasonably be expected to be in the the performance of the work he was thus employed to do. The pleading is silent on that subject. What was he to do in the way of preparation? The complaint does not answer, but it is plain that when the holt became loose plaintiff was then using the truck, and there, in the factory, “engaged in his work as aforesaid.” The work aforesaid was propelling the truck from place to place in the factory. The bolt was loose, and he was preparing to fasten it, not that he was “then and there” preparing to fasten it, for it would hardly be said that he was at the same time both propelling the truck and doing some physical act in the way of preparing to fasten a bolt on it. Plaintiff at said time (January 21) of said preparation was where? In the factory? No, he “was at and near a certain pile of manufactured ware,” which is not shown to be in or out of the factory, nor in a place where plaintiff was employed to work.
The majority opinion in the case at bar, holding the com
Note. — Reported In 96 N. E. 643, 649. See, also, under (1) 26 Cyc. 1384; (2) 26 Cyc. 1389; (3) 26 Cyc. 1384, 1389; (4) 38 Cyc. 1927; (5) 26 Cyc. 1513; (6, 7) 26 Cyc. 1503; (8) 26 Cyc. 1497; (9) 38 Cyc. 1778; (10) 38 Cyc. 1657. As to tile doctrine of assumption of risk and contributory negligence as affecting the right of an employe to recover for personal injuries, see note to Brazil Block-Coal Co. v. Gibson (Ind.) 98 Am. St. 289; 97 Am. St. 884. On the question whether a servant may assume the risk of dangers created by the master’s negligence, see 4 L. R. A. (N. S.) 848 ; 28 L. R. A. (N. S.) 1215. As to assumption of risk of dangers created by the master’s negligence, which might have been discovered by the exercise of ordinary care on the part of the servant, see 28 L. R. A. (N. S.) 1250.