174 Ind. 630 | Ind. | 1910
Appellee brought this action against appellant to recover damages for injuries received by him while in the service of appellant. Appellant’s demurrer to the complaint for want of facts was overruled. The jury returned, with the general verdict, answers to interrogatories submitted by the court. Over appellant’s motion for a new trial and a motion for judgment in its favor on the answers
The objections urged against the sufficiency of the complaint by counsel for appellant, as shown by the statement of points and authorities contained in his brief, are as follows : ‘ ‘ The complaint shows upon its face that at the time plaintiff was injured he was not only placing upon the eye-bolt in question the weight of the casting, but was pushing thereon with all his strength, while the allegations relating to assurance are that he complained to the superintendent that the thread on the eye-bolt was insufficient to lift the casting, and was assured that it was sufficient therefor. The complaint shows that at the time of the injury he was using the eye-bolt in a different manner and placing upon it more weight than that of the casting. The protection which the servant has from assumption of risk applies only to the situation and conditions to which he directs the master’s attention, and concerning which he is assured.” Citing, Labatt, Master and Serv. §454; Cisney v. Pennsylvania Sewer Pipe Co. (1901), 199 Pa. St. 519, 49 Atl. 309. The brief further states: “The complaint shows that defendant’s superintendent assured plaintiff of safety in lifting the casting with the eye-bolt, and shows, also, that plaintiff was throwing upon it his own weight, in addition to that of
It is alleged, however, that in moving said casting (the cross-head guide), “it became and was-necessary that plaintiff should take hold of said casting with his hands and push it with all his strength, while it was elevated and suspended in the air by the use of said eye-bolt, rope and pulley * * * that defendant, through its superintendent, carelessly and negligently assured plaintiff that said thread was of sufficient strength, and that it would be safe for plaintiff to work at moving said casting with the eye-bolt and thread thereon; that plaintiff relied upon said assurance, and by reason of such assurance believed it would be safe for him to remove said cross-bar with the eye-bolt; that on December 1, 1906, he proceeded to assist in so removing said easting, by screwing said eye-bolt into said hole in said casting, and attaching one end of a rope to the eye in said eye-bolt, and having the other end of said rope over and through a pulley suspended above it, thereby raising said casting; that plaintiff and said others did raise said casting, and plaintiff did then, in the course of his said employment, proceed to move said casting to the desired point, by taking hold of it with his hands and pushing against it with all his strength. ’ ’
It is clear from said allegations of the complaint that the lateral push given said cross-head guide was incident and necessary to the work at which appellee was engaged, and that he was assured it would be safe for him to work at moving said easting with said eye-bolt. The moving of the casting included not only lifting said cross-head guide, but also pushing it to one side by the method used in this ease. It follows that said complaint is not open to said objections.