182 Ind. 610 | Ind. | 1915
In tbe trial court appellee recovered a judgment for damages growing out of personal injuries sustained by bim while in tbe employ of appellant. The only questions presented on appeal relate to tbe action of tbe court in overruling appellant’s demurrer to tbe complaint and in overruling appellant’s motion for a new trial.
The objections urged against tbe complaint are that tbe facts stated do not show negligence on tbe part of appellant and that the specific facts stated show that appellee was guilty of contributory negligence.
From tbe allegations of the complaint it appears that appellant was a corporation engaged in manufacturing and erecting structural steel and iron work, and that, at tbe time appellee was injured, it was engaged in erecting tbe steel structure of a building at Kokomo, Indiana, using in the prosecution of such work a large and powerful steam hoisting machine and derrick which are described in tbe complaint with considerable particularity. It is shown that tbe boom of tbe derrick was raised and low
The complaint further alleges that the rope used was a hemp rope one inch in diameter and that when such a rope had been used for such a length of time as to make it pliable, the boom could be safely operated when such a rope was wound four or five times around the winch head, but that, when a new rope which was stiff and unpliable was used, it was necessary to the safe operation of the boom that such a rope should be wound eight or ten times around the winch head. It is alleged that all of these facts were known to appellant at and before the time of the injury to appellee, and that they were unknown to appellee at any time prior to his injury.
It further appears from the allegations of the complaint that appellee was employed by appellant as a common laborer to do such work as he was directed to perform and that he had been so employed for some time prior to the accident. The services required of him had been performed generally on other parts of the work but on several occasions he had been directed to operate the boom and had done so for several minutes at a time always using a rope which had be
The complaint further shows by proper allegations that appellee had no experience in operating the boom with a new stiff rope prior to the day on which he was injured, and that in all his former experience he had used a rope which had become soft and pliable by use and which he could easily hold with one hand when it was wrapped four or five times around the winch head; that he relied on such former experience and that appellant knew when appellee was put to work with the new rope that he would so rely; that it required more experience than appellee had to safely operate the boom with a new rope which fact was known to appellant and was unknown to appellee. It is charged tnat appellant negligently ordered appellee to operate the boom with the new rope with the same wound only four or five times around the winch head and that it negligently failed to warn him of the additional dangers incident to the use of a new rope in the operation of the boom. The facts stated clearly show that appellant was negligent. Knicker
The specific facts alleged in the complaint do not show contributory negligence as a matter of law. In actions of this kind the complaint is not required to negative contributory negligence. A complaint in such a case will be held sufficient unless the facts pleaded are such as to show the plaintiff guilty of contributory negligence as a matter of law. If from the facts pleaded opposite inferences as to contributory negligence may be drawn by reasonable minds, the question presented is not one of law which can be decided in passing on a demurrer. Cole v. Searfoss (1912), 49 Ind. App. 334, 97 N. E. 345.
The fact that appellee let go of the rope with his left hand and attempted to hold it with his right while using the left to untangle the rope lying back of him does not show as a matter of law that he was guilty of contributory negligence, especially when considered in connection with the other allegations of the complaint showing his former experience and his lack of knowledge of the dangers incident to the operation of the boom with the new rope. The complaint is clearly sufficient.
The only question raised by the motion for a new trial and presented on appeal is the sufficiency of the evidence to sustain the verdict. The record shows that there is evidence to sustain every material allegation of the complaint.
Judgment affirmed.
Note. — Reported in 108 N. E. 107. As to contributory negligence and the general principles of law applicable to it, see 55 Am. Dec. 666. On the general question of the master’s duty to warn and instruct his servants, see 44 L. R. A. 33. As to duty of master to instruct servant as to scientific facts, see 19 Ann. Cas. 1154. See, also, under (1) 26 Cyc. 1393; (2) 26 Cyc. 1399; (3) 26 Cyc. 1401; (4) 3 Cyc. 348.
