166 Ind. 458 | Ind. | 1906
—This was an action by a servant against
his master for negligence. It appears that appellee, the plaintiff below, was injured while driving with a car-load of coal through a door opening into a coal mine. The door was so constructed that it was self-closing, and appellee was injured as he stood on. the bumper and chain of the car, and while engaged in the effort to keep the door open as the car passed through, owing to the fact that he failed to stoop sufficiently to permit his person to escape the lintel. Appellant was charged with negligence in three particulars: (1) In not affording a doorway of sufficient height; (2) in furnishing a car that was too high; (3) in failing to designate a person to open and close the door, as required by section eighteen of an act of the General Assembly, approved March 2, 1891 (Acts 1891, p. 57, §7478 Burns 1901), entitled: “An act requiring the weighing of coal, providing for the safety of employes, protecting persons and property injured, providing for the ventilation of mines, prohibiting boys and females from working in in mines, conflicting acts repealed, and providing penalties for violation.”
In Gibson v. Leonard (1892), 143 Ill. 182, 32 N. E. 182, 17 L. R. A. 588, 36 Am. St. 376, the members of a' fire patrol broke into a burning store, for the purpose of covering the stock with tarpaulins. The plaintiff, who was a member of said company, and acting as such at the time, was injured, as he was operating a freight elevator, owing to the breaking of a counterweight. He based his claim of a right to recover upon a municipal ordinance requiring that in buildings where machinery was employed, such machinery, including elevators, “and every other thing, when so located as to endanger the lives and limbs of those employed therein while in the discharge of their duties,” should be so “covered or guarded as to insure against any injury to such employes.” It was held that the ordinance did not create a duty in favor of the plaintiff, as it showed that it was ordained for the protection of employes, and not for mere licensees.
A question may in some instances exist as to whether a statute or ordinance was designed to avert the evil consequences complained of, and in some cases there may be difficulty in determining whether the spirit of the requirement is bound down by its literalism in respect to the persons within its protection, but, subject to possible minor exceptions not pertinent to the facts of this case, it may be said that when it is determined that a statute or ordinance was enacted or ordained for a wholly different purpose than to prevent the injury complained of, or that the plaintiff does not belong to the class that the law was designed to protect, it follows that it will not avail to supply the element of a duty owing. Zimmerman v. Baur (1895), 11 Ind. App. 607; New York, etc., R. Co. v. Martin (1905), 35 Ind. App. 669; Groves v. Wimborne [1898], 2 Q. B. 402; O’Donnell v. Providence, etc., R. Co., supra; Harty v. Central R. Co. (1870), 42 N. Y. 468; City of Rochester v. Campbell (1890), 123 N. Y. 405, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. 700; East Tenn., etc.,
We have serious doubt as to the sufficiency of the complaint in respect to the charge that the lintel was constructed too low, and also as to the charge that the car was too high, hut it appears unnecessary to pass on the complaint, for the reason that appellee, if he has any case, has not made out one, and we assume will he unable to make out one, within the averments of his complaint. So far as appears, he could readily have stooped sufficiently to pass through the door had he been advised that it was necessary, and therefore the charges referred to are not sustained by the evidence. Whether, since the car was a new one and the bumpers thereof were higher than on the cars which had been in use, he has a cause of action for a failure to warn him, we leave undetermined.
Judgment reversed, and a new trial ordered