52 Ind. App. 315 | Ind. Ct. App. | 1912
Appellant brought this action to recover damages for personal injuries sustained by him while in the employ of appellee. The complaint was in two paragraphs, to the second of which a demurrer ivas sustained and the case was tried on the first. At the close of appellant’s evidence the trial court, on motion by appellee, instructed the jury to find for appellee, and also overruled appellant’s motion for a new trial.
The first error assigned and relied on by appellant is that the court erred in sustaining appellee’s demurrer to the second paragraph of the complaint.
Appellant asserts, and appellee denies, that the lathe or machine on which appellant was working when injured comes within the provisions of the statute (§8029 Burns 1908, Acts 1899 p. 231) requiring certain machinery to be guarded.
In the light of recent decisions of this court and the Supreme Court, we hold that the averments make a case within the purview of the statute. United States Cement Co. v. Cooper (1909), 172 Ind. 599, 612, 88 N. E. 69; Green v. American Car, etc., Co. (1904), 163 Ind. 135, 139, 71 N. E. 268; Baltimore, etc., R. Co. v. Cavanaugh (1905), 35 Ind.
The following language in United States Cement Co. v. Cooper, supra, 613, is applicable here: “ It is alleged * * * that the offending machine was dangerous from being uncovered and exposed; that the same might have been covered at a reasonable cost and without affecting its efficiency. We think these averments are sufficient to send these questions to the jury.” The second paragraph states a cause of action under the statute, and the court erred in sustaining the demurrer thereto.
The case was tried on the first paragraph of the complaint, and at the close of appellant’s evidence the court directed a verdict for appellee. This action of the court is made a cause for a new trial and the overruling of the motion for a new trial is assigned as error.
The sufficiency of the first paragraph of the complaint is not questioned by this appeal. Our decision on the sufficiency of the second paragraph of the complaint compels a reversal of the judgment.
The judgment is therefore reversed, with instructions to sustain the motion for a new trial, overrule the demurrer to the second paragraph of the complaint, and for further proceedings in accordance with this opinion.
Note. — Reported in 98 N. E. 1009. See, also, under (1) 26 Cyc. 1384; (2) 26 Cyc. 1397; (3) 38 Cyc. 1457. As to risks assumed by servants, see 52 Am. Rep. 737 ; 24 Am. St. 320. As to tbo muster’s duty to guard or enclose dangerous machinery. See note to Brazil Block Coal Co. v. Gibson (Ind.), 98 Am. St. 299. As to servant’s assumption of risk of master’s breach of 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.