184 Ind. 294 | Ind. | 1915
This appeal is taken from a judgment in favor of appellee for personal injuries. The only questions presented are those which arise under a motion for a new trial, the complaint having been held sufficient on a former appeal. King v. Inland Steel Co. (1912), 177 Ind. 201, 96 N. E. 337, 97 N. E. 529. The record shows that appellee was employed by appellant as a laborer in its mill and that while he was engaged' in his labors about the mill his foot slipped into some unguarded cog wheels and he was thereby injured. Appellee’s action is based on this injury and he relies upon the negligence of appellant in failing to furnish and keep in place proper guards for these cog wheels. The ' evidence shows without dispute that appellee at the time he was injured was a millwright and that he was subject to the orders, of .the millwright boss. His duties required him to go about the plant and adjust the machinery and to report anything that was broken or that was out of order. When appellee was injured he was engaged in lining up the rolls in the vicinity of the unguarded cog wheels. The rolls were not in operation when he commenced the work, but while he was engaged in adjusting set screws in obedience to an order, the rolls started and his foot slipped off the table roll into the cog gears. The cog wheels in question were situated about thirteen inches above the. floor and on the opposite side from the person who stood at the table to guide the metal in the operation of the rolls, and there was no occasion to go near them except for the purpose of making adjustments or in ease ingots stuck and stopped the rolls. There was evidence to show that these cogs could have been guarded without interfering with the operation of the ma- . chinery while other evidence showed that they would heat if guarded. A question of fact was thus pre
To show contributory negligence it must appear that he did not use such care as a person of ordinary prudence would have used in view of the known danger. The doctrine of assumption of risk finds no application in this case, and the question of contributory negligence under the facts proven was one of fact for the jury. The evidence is sufficient to sustain the verdict. Jenney Electric Mfg. Co. v. Flannery (1913), 53 Ind. App. 397, 98 N. E. 424. The opinion of the Appellate Court in the case last cited contains an extended discussion of the question here involved and decided. It may be further said in support of the opinion that a recovery has never been denied to a person injured on a defective street upon the ground that he knew of the defective condition of the street and attempted to pass over it when he might have traveled a safe street by going slightly out of his way. City of Huntington v. Breen (1881), 77 Ind. 29; City of South Bend v. Hardy (1884), 98 Ind. 577, 49 Am. Rep. 792. In such cases there is no question of assumption of risk and knowledge of the defect is considered only in determining whether the injured party used reasonable care in view of such danger and the known means of avoiding it.
It would unnecessarily extend this opinion to discuss all of the questions raised on the instructions. The court has considered the instructions given and those refused in connection with the rea
Note. — Reported in 110 N. E. 62. As to proximate'cause of injury, see 36 Am. St. 807. On the question volenti non jit injuria as a defense to actions by injured servants, see 47 L. R. A. 161. As to servant’s assumption of risk of the master’s breach of a statutory duty, see 6 L. R. A. (N. S.) 981; 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; L. R. A. 1915 E 527; 4 Ann. Cas. 599; 13 Ann. Cas. 36; Ann. Cas. 1913 C 210. As to assumption of risk arising after commencement of employment as question of law or fact, see 3 Ann. Cas. 814. See, also, under (1) 29 Cyc 496; (2) 26 Cyc 1482; (3) 29 Cyc 631, 633; (4) 26 Cyc 1180, 1196; (5) 26 Cyc 1230; (6) 26 Cyc 1497; (7) 29 Cyc 652.