37 Ind. App. 194 | Ind. Ct. App. | 1906
Appeal from a judgment for damages for personal injury. Appellant assigns as errors: (a) Overruling the demurrer to the complaint; (b) overruling
The complaint avers, in substance, that appellant is a corporation manufacturing pulp and paper, having large and extensive buildings and machinery, and on November 10, 1902, employed appellee to operate and run an engine in its factory; that John O’Day was appellant’s master mechanic, whose orders and directions appellee, as an employe of appellant in its service, was bound to conform to and obey; that appellee was employed to work for appellant by O’Day, and was put to work under and subject to his directions at setting valves in the engines, which work occupied about ten days; that thereafter appellant’s general superintendent ordered O’Day to put the employes, including appellee, to work at changing some pumps in the factory; which work occupied several days; that thereupon O’Day, under appellant’s orders, took the employes back to the engineroom, where they continued to work under O’Day’s directions until between December 25, 1902, and January 1, 1903, at which time appellee was put to work for a short time laying a pipe-line on appellant’s factory grounds, after which he was put to work under O’Day’s directions in the machine-shop, where he worked, until injured, at different and more hazardous work, and where he was required to work at an emery-wheel, which was unguarded and without exhaust-fans, of which hazards and dangers appellee was ignorant; that' there was in the machine-shop, as a part of the machinery, a mandril, with an emery-wheel on each end, which wheels were used for sharpening tools and grinding off the rough edges of pieces of iron, and which, when in use, made from eight hundred to one thousand revolutions per minute; that appellant had for more than a year “negligently and carelessly failed, neglected and omitted properly to guard, or to guard at all, said certain machinery and emery-wheels, or either or any of them, or to cause the same or any of them to be
In answering two sets of interrogatories the jury found substantially the following facts: Appellant employed appellee in November, 1902. O’Day was appellant’s master mechanic, and appellee was bound to conform to and obey his orders. O’Day employed appellee as an engineer, and first put him to work setting the valves in the engine, which work occupied about ten days, and thereafter O’Day put appellee to work at changing the location of some pumps, which work occupied several days. Afterward O’Day had appellee working in the engine-room until between the latter part of December, 1902, and January 1, 1903. He worked a short time laying a pipe-line on the factory premises, and was then put to work by O’Day in the machine-shop, where he worked until injured on January 1, 1903. He was required to work at emery-wheels which were unguarded and were not provided with exhaust-fans, which work was attended with greater hazards and dangers to appellee’s eyes than the work of running an engine, which he had been employéd to do. Appellee was wholly inexperienced in working at emery-wheels prior to the time he was put to work by appellant in its machine-shop, and did not know the danger of doing work at the emery-wheels, and was not warned by appellant or any one of the danger from particles of iron or steel or emery set free from the wheels. The wheels were not protected by hoods or devices of any kind, nor with exhaust-fans or devices to carry off dust and particles. It was practicable to guard the wheels without interfering with their operation or usefulness, and no device or protection of any kind was fur
But in the case at bar it is sufficiently shown by the pleading that no exhaust-fans were provided for the emery-wheels, that without the exhaust-fans they were dangerous, and that it was practical to operate the emery-wheels with proper exhaust-fans. This clause of the above section was not under consideration in either Monteith v. Kokomo, etc., Co., supra, or Laporte Carriage Co. v. Sullender, supra; and it would seem to be sufficient to aver that- the emery-wheel was not provided with any exhaust-fan for carrying off dust therefrom. The effect of the statute is to impress upon an emery-wheel in use in a factory a characteristic of danger, and to forbid its use unless provided with an exhaust-fan. The statute imposes a specific obligation with reference to a specific thing, and the failure to comply with the requirements of the statute is a plain breach of a statutory duty owing to the employe. But, if the doctrine of the case of Laporte Carriage Co. v. Sullender, supra, is applied to this particular clause of the statute, the pleading sufficiently avers that the emery-wheel could have been provided with an exhaust-fan without rendering it useless for the purposes intended.
Appellee, in his complaint, alleged, among other acts of negligence, that appellant had failed properly to guard its emery-wheels, and that it had failed to provide any protection for the eyes of employes who were required to operate the wheels, and that it had failed to provide exhaust-fans. If the above instruction required appellee to establish by evidence more than was necessary to make a case of negligence, an objection to the instruction on that ground could avail appellant nothing. That is, if it was a case where exhaust-fans should have been provided, and they were not, it was unnecessary to show negligence in any other respect. The instruction does not tell the jury that if appellant failed properly to guard the wheels, or failed to provide exhaust-fans, or failed to provide any shield or protection for the eyes of employes, that such failure would be negligence; but the instruction states that, if appellant failed in all three of the particulars named, it was guilty of negligence.
Applying the foregoing rules to the case at bar it can not be said that any reversible error was committed by the trial court in the instructions to the jury.
Judgment affirmed.