177 Ind. 201 | Ind. | 1911
Lead Opinion
This appeal is an action brought by appellant against appellee to recover damages for personal injuries. A demurrer was sustained to appellant’s amended complaint by the lower court, and that ruling is assigned by appellant as error.
The amended complaint is based on the failure of appellee to guard certain uncovered cog-wheels, as required by §9 of the factory act of 1899 (Acts 1899 p. 231, §8029 Burns 1908), and is as follows: “The plaintiff for amended complaint complains of defendant, and says that defendant is a corporation duly organized as such; that at the time plaintiff received the injuries hereinafter alleged, and for more than two years prior thereto, defendant was engaged in operating a certain rolling-mill in the city of East Chicago, in said county, and in the manufacture of iron and steel therein, and plaintiff was employed by defendant to work in and about said rolling-mill, and acting in the course of his said employment. That at the time plaintiff received his said injuries, and for more than two years prior thereto, defendant continuously maintained in said rolling-mill, a certain set of gearing consisting of cog-wheels so placed, that the cogs in each of them fitted into the spaces between the cogs in
8. Neither logic nor sophistry can argue away the very obvious fact that but for appellee’s violation of the duty expressly imposed by statute appellant would not have received the injury complained of, and the question of intervening agency or mischance, for which appellant is in nowise responsible, should not be controlling to the absolution of appellee for its wrong. The negligence of appellee was present at the very beginning of the series of events which led up to appellant’s injury, and it continued along with all of them and caused his injury. There was no time when the casual connection of appellee’s breach of duty with appellant’s injury was broken. It was the first, the immediate and efficient cause. This is proximate cause. It may be conceded that the starting of the machinery was, also, a proximate cause, that without the moving of the gears, of which the cogs were a part, the accident to appellant could not have happened, even though the cogs were exposed in violation of the statute, yet it is equally true that without the failure of the statutory duty to cover the cogs the injury could not have happened, even though the machinery was set to running. Whether the machinery was set in motion by a nonresponsible agency, or by a fellow servant, or, as alleged in the complaint, by the master, can make no difference, as in either event it but concurred, as a proximate cause, with the negligence involved in the viola^tion of the statute which must be regarded as a proximate cause. The starting of the machinery with the cogs covered would not have caused appellant’s injury. It is the intervening agency, which of itself, unaffected by the preceding negligence, caused the injury, which will prevent a recovery. An intervening agency which merely concurs with that
In Bessler v. Laughlin, supra, it was held by this court that a vat cover which fell against the plaintiff and caused him to fall into an unguarded vat, was not such an intervening cause as would break the causal connection between the defendant’s breach of duty in failing to guard the vat, under this same section of the statute, and prevent a recovery therefor.
In Cook v. Ormsby, supra, appellant was operating for appellees a saw, required by the statute to be guarded. Appellees had failed to provide a guard. A fellow servant of appellant came up behind him, and pinched or pushed him, which caused him to start and thrust his hand forward against the saw, and he was injured. It was contended there as here that the intervening agency was the proximate cause of the injury to the appellant, and that the violation of the statute by appellees was thereby rendered a remote cause. It was held by the Appellate Court, that the fact that had the saw been properly guarded the injury would have been avoided, made it wholly immaterial that the act of the fellow servant concurred in the incidents which produced it.
The amended complaint is not subject to any of the objections urged against it, and the court below erred in sustaining .appellee’s demurrer to it.
The judgment is reversed, with instructions to overrule appellee’s demurrer to the amended complaint, and for further proceedings not inconsistent with this opinion.
Rehearing
On Petition for Rehearing.
Counsel for appellee, in support of its petition for rehearing, have presented a much more extended and thorough brief on the questions involved than that presented for the first consideration of the case.
Petition for rehearing denied.