65 Ind. App. 268 | Ind. Ct. App. | 1917
This is an appeal from a judgment of the Miami Circuit Court in appellee’s favor fpr $2,500, in an action brought against appellant to recover damages for the death of Leo Coughlin. On and prior to November 8, 1912, the time of the occurrence complained of, the Indiana Manufacturing Company was a corporation which employed more than five men, among whom was appellee’s decedent, Leo Coughlin, and, on said day, he and others were engaged in installing a telephone system in appellant’s factory. While engaged in such work, attempting to pass one of the wires of said system over a pipe some ten or twelve feet above the floor of said factory, decedent came in contact with a coupling of appellant’s metal line shaft that. was being rapidly revolved, and he thereby received injuries which resulted in his death.
The complaint is in two paragraphs, to each of which
The averments common to each of the paragraphs, and necessary to an understanding and disposition of the questions presented by the rulings, supra, are in substance as follows: Appellant, for the purpose of transmitting power to its machinery, maintained in its factory a metal line shaft about forty feet long and three inches in diameter. Said shaft was in sections, which were joined together by a certain coupling consisting of two metal discs eight inches in diameter, held together by four bolts extending through the faces of said discs and within one inch from the periphery thereof. Said sections of shaft when thus coupled together formed a continuous shaft. The nuts, and the thread ends of said bolts extending beyond said nuts, projected from the faces of said coupling about two inches. At said times said shafting and coupling could have been guarded so as to protect from injury the employes of defendant who worked about the same, without interfering with the efficient use for which they were designed and used by defendant.
The first paragraph then proceeds in substance as follows: Decedent, on said day, and for some weeks prior thereto, “had been employed by and was working for defendant at said factory; that, in the course of said employment and in compliance with instructions given by said defendant corporation to * * * said decedent, said decedent was, on said day, engaged in putting up
The second paragraph, in addition to the averments common to each paragraph, indicated supra, avers that said coupling “was unguarded so as to protect from injury the employes of defendant corporation who worked about the same;” that decedent was on November 8, 1912, and for some months prior thereto had been, in
The portions of each paragraph of the complaint which we have italicized, supra, are attacked by appellant’s said motions as being conclusions, which should have been supplemented by an averment of the facts necessary to their support. It is insisted in effect that inasmuch as the courts have always jealously guarded the right of a defendant to be apprised of the
The requirements of the statute upon which this paragraph is based (§§8020a-8020k Burns 1914, Acts 1911 p. 145) were met by alleging facts showing that decedent was ordered by appellant to work at a place made dangerous by its negligence, and that while performing such work in obedience to such order and by reason of such conformance • thereto, decedent received the injury that resulted in his death, and any averment, by way of conclusion or otherwise, with reference to other employes being required to work at such place was not essential to the sufficiency of the pleading.
It will be observed that said paragraph alleges the facts showing the character of the work which appellant required of decedent, the nahire of the order and directions given to decedent by appellant, and that conforming to such order and directions decedent was required to be, and was in fact, brought in close proximity to said coupling of said line shaft; that such coupling was unguarded and was in motion when decedent was directed to do the work which brought him in contact with it; that while obeying such orders and directions and because thereof decedent was caught by said coupling, etc. Said paragraph therefore contains averments of all the facts indicated as necessary by appellant’s said motion to support said conclusions, except' those showing the necessity for other employes of appellant to work near said coupling and the character of the work required of such employes, and, as before indicated, such conclusion, in so far as it involves such facts, is not essential to the sufficiency of said pleading.
Appellant also concedes that the sole question presented by such assignment of error is whether “under the provisions of the factory act appellant owed to appellee’s decedent a duty to guard the coupling in question.” It is insisted by appellant, in effect, that such act does not require an employer to guard every piece of machinery, even of the kind particularly described therein, but that the terms of the act are complied with when such employer guards the machinery designated therein when its location is such that the employes of such factory, in the usual discharge of their labors and duties, may be brought in close proximity to such machinery when in motion; that the facts averred in' said
It is frue, as appellant contends, that it was not intended by the statute in question to impose upon the factory owner unreasonable burdens, or to require that he guard his laborers against every possible danger (Robertson v. Ford [1904], 164 Ind. 538, 74 N. E. 1; Glens Falls, etc., Cement Co. v. Travelers’ Ins. Co. [1900], 162 N. Y. 399, 56 N. E. 897; Cobb v. Welcher (1894), 75 Hun 283, 26 N. Y. Supp. 1068); but this principle and line of cases have no application where, as in the instant case, it appears that the machinery in question is of the kind required by the statute to be guarded, that there was a total failure to guard it, and that the master, knowing its unguarded condition, required its employe to work at a place where he would be exposed to the danger of such unguarded machinery while it was being operated. In such a case, the statute makes imperative the duty to guard, and a failure to do so is negligence. Robbins v. Ft. Wayne Iron, etc., Co. (1907), 41 Ind. App. 557, 563, 84 N. E. 514; F. Bimel Co. v. Harter, supra; United States Cement Co. v. Cooper (1909), 172 Ind. 599, 612, 88 N. E. 69; Cincinnati, etc., R. Co. v. Armuth (1913), 180 Ind. 673, 677, 679, 103 N. E. 738.
We are aware that there are cases in other jurisdictions which lend support to appellant's contention, notably Glens Falls, etc., Cement Co. v. Travelers’ Ins. Co., supra; Cobb v. Welcher, supra; Dillon v. National Coal Tar Co. (1905), 181 N. Y. 215, 73 N. E. 978; Shaw v. Union Bag, etc., Co. (1902), 76 App. Div. 296, 79 N. Y. Supp. 276, 277, 278; Glassheim v. New York, etc., Printing Co. (1895), 13 Misc. Rep. 174, 34 N. Y. Supp. 69, 72. Other New York cases, however, indicate a more liberal construction of such statute.
Assuming, without deciding, that the averments of said paragraph may be open to the interpretation insisted on by appellant, yet their fair and reasonable interpretation at least permits the inference that Benedict ordered said decedent to place said wire over said shaft while it was in motion. This interpretation is, we think, justified by the following averments, which follow those showing decedent’s duty to obey the orders of Benedict, viz.: “Plaintiff avers that during the time his decedent was.- employed by defendant corporation and subject to the orders and directions of said Benedict as aforesaid, and at a time when said shaft coupling, in the condition aforesaid, was open and exposed and was being revolved by defendant with force and
By its twenty-sixth proposition, appellant says that “it is error to admit evidence that after an accident defendant had placed guards on the machinery”; that such evidence is incompetent either for the purpose of showing negligence, or for the purpose of showing that such machinery could be guarded without impairing its usefulness. This proposition is evidently intended to
The only other possible effect the evidence could have had, was its effect on the question whether such machinery could be guarded without interfering with the use of the machine, and this was not a controverted question in the case. There was no evidence and no claim that it could not be so guarded. The Supreme Court in the case of Cincinnati, etc., R. Co. v. Armuth, supra, had before it the same question, and while it held that the evidence was not admissible for either of the purposes indicated, it also held that any prejudicial error in that case was cured by an instruction similar to that given in this case. On the authority of that case, we hold that any error resulting from the admission of said evidence was rendered harmless by the instruction indicated.
Finding no reversible error in the record, the judgment below is affirmed.
Note. — Reported in 115 N. E. 260. Master and Servant.: master’s duty to guard dangerous machinery, 98 Am. St. 290, 18 Ann. Cas. 652, Ann. Cas. 1914A 658; right of action for violation of factory act relative to the guarding of dangerous machinery, L. R. A. 1915E 541, 26 Cyc 1133.