67 Ind. App. 315 | Ind. Ct. App. | 1917
This action was instituted by appellee to recover damages for personal injuries resulting from alleged negligence. The cause was tried on the issue formed by the general denial addressed to the first paragraph of amended complaint, a demurrer to said paragraph having been overruled and all other paragraphs of complaint having been withdrawn. Verdict and judgment for appellee in the sum of $4,741.
The errors assigned are: (1) The court erred in overruling the demurrer to the first paragraph of amended complaint; (2) the court erred in overruling appellant’s motion for judgment on the interrogatories and answers thereto; and (3) the court erred in overruling appellant’s motion for a new trial.
The body of the said paragraph of complaint is as follows: “That the defendant is now and was on the 1st day of November, 1910, a duly organized and existing corporation, and engaged in the manufacture and repair of railroad cars, among other things, at Hammond, Indiana, and it was the owner of a number of buildings in which it carried on said work or business, and employed several hundred men therefor. That the plaintiff, -at the time of receiving the injury hereafter mentioned, was married and thirty-one years of age, and was strong, robust and in good health at the time of his injury herein stated. That at the time of said injury the plaintiff was in the employ of the defendant and was working in one of the defendant’s said buildings known as the blacksmith shop in which was a certain iron shaft with pulleys, belts and emery wheels which were operated, when used as hereafter stated, by means of electric power,
The alleged defects in the complaint, as presented by appellant’s brief, are: (1) That an emery wheel is not such a machine as the Factory Act requires to be guarded; and (2) that the complaint does not negative assumption of risk.
(1) Section 9 of the act commonly known as the Factory Act, Acts 1899 p. 231, being §8029 Burns 1914, contains the following clause: “All vats, pans, saws, planers, cogs, gearing, belting, shafting, setscrews, and machinery of every description therein, shall be properly guarded”; and the sufficiency of the complaint depends upon the construction put upon said clause by the courts. As supporting the first alleged defect appellant relies on the case of National Drill Co. v. Myers (1907), 40 Ind. App. 322, 81 N. E. 1103. Evidently in that case the court was misled by the process of reasoning in the case of Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 75 N. E. 277, in which an attempt was made to
(2) On appellant’s request the court submitted to the jury thirty-five interrogatories, and appellant contends that the answers to certain interrogatories show that it was impracticable to guard or cover more than three-fourths of the emery wheel; that, in the event of the breaking or bursting of the wheel, fragments would be hurled through the unguarded one-fourth; that all danger would not thereby be eliminated, and that therefore there was no duty resting on appellant to guard the wheel at all. As supporting this contention appellant relies on the following interrogatories and answers:
“14. Was it necessary that one-quarter of the wheel immediately in front of plaintiff be open and exposed? Ans. Yes. 16. In doing the work-he was doing, did plaintiff stand in front of and facing the emery wheel? Ans. Yes. 17. While plaintiff was grinding said casting, did the emery wheel break? Ans. Yes. 17%. Did the emery wheel break because
In this connection we must have a due regard for the importance of the word “properly” as used in the statute. Where it is not practicable to guard a dangerous machine so fully and securely as to eliminate all danger, but it is practicable to guard it partially and in such manner as to reduce the danger to
By its general verdict the jury necessarily found, as an essential element thereof, that it was practicable to have properly guarded the emery wheel. Now, we are asked to say that on this point there is an irreconcilable conflict between the answers to said interrogatories and the general verdict.
The following interrogatories may not be ignored: “29. Was it necessary to have a guard or covering over the wheel which plaintiff found on the arbor in order to make it safe for the work he was doing? Ans. Yes. 30. If you answer the last question ‘Yes,’ state why it was so necessary. Ans. To make it safe.”
Interrogatory No. 14 does not definitely locate the quarter of the wheel necessary to be exposed. It can reasonably be construed to refer to the quarter below a horizontal line passing through the center of the wheel, and next to the workman; for that quarter would be “immediately in front” of him. Of course, the proper manner of guarding the wheel was primarily a problem for experienced men — mechanical engineers — rather than lawyers. We assume that appellant in its effort to enlighten the jury on this point presented all the evidence available to sustain its contention. We assume also that the jurors took into account the relative heights of workman and machine, the position and posture of the workman while holding the car slide against the wheel, the fact that the wheel revolved toward him from the highest point on its circumference, and that law of physics which determines the direction a fragment must take when hurled from a rapidly revolving wheel; and that from these considerations the jurors concluded that if the wheel had been guarded as above indicated, the workman’s head and body could not have been hit by the flying fragments, and therefore the failure to guard was the proximate cause of his injury. When so understood, the interrogatories and answers harmonize, rather than conflict, with the general verdict.
Note. — Reported in 116 N. E. 4. Master and servant: liability of master to servant injured by bursting of emery wheel, Ann. Oas. 1912B 1334; servant’s assumption of risk of master’s breach of statutory duty, 26 Oyc 1180, 4 Ann. Oas. 599, 13 Ann. Cas. 36, Ann. Oas. 19130 210, 19 L. R. A. (N. S.) 646, 22 L. R.' A. (N. S.) 634, 33 L. R. A. (N. S.) 646, 42 L. R. A. (N. S.) 1229; duty of master to guard dangerous machinery, 98 Am St. 299; what is comprehended in expression “machinery of every description” as used in statute relative to guards, 30 L. R. A. (N. S.) 36. See under (1, 5) 26 Cyc 1134; (2) 26 Oyc 1463; (3) 26 Oyc 1392; (8, 9) 26 Oyc 1093.