14 Ind. App. 634 | Ind. Ct. App. | 1896
This is the second appeal in this cause. In the former the judgment was reversed for the insufficiency of the complaint and error in overruling a demurrer thereto. New Pittsburgh Coal and Coke Co. v. Peterson, 136 Ind. 398.
After the reversal, the appellee attempted to amend his complaint so as to conform to the view of the Su
Formerly the complaint was in four paragraphs. The amended complaint contains hut a single paragraph.
It is urged by appellant’s counsel that in the respect in which the original was held defective, the amended complaint is equally so. If this be true, the cause must be reversed, for the ruling on the former appeal is the law of the case and remains so throughout all subsequent stages. Elliott App. Proced., section 578. It appears from the averments of the complaint as amended that one G-us Lawrent (called Lawrence in the former opinion) was a foreman in charge of that department of the mine in which appellee was injured while at work for the appellant; that it was Lawrent’s duty to employ and discharge the workmen, including the appellee, and to direct them in their work, and also look after the machinery and keep the same in- repair and running order, and direct when it should run and when remain idle; that appellant had a coke yard in which there was an elevator, which was composed of two wooden upright shafts through which two endless chains passed, to which were attached iron brackets passing over sprocket-wheels at the bottom and top of said shafts, which wheels, at the bottom of the shafts, were attached to an iron axle turned by means of a chain belt attached to the engine and axle, and propelled by means of said engine; that appellee was employed to work in said coke yard in hauling slack, etc., 'in a wheelbarrow, at $1.25 a day, as a common laborer, and was wholly ignorant of the uses of machinery therein; that said machine was not under the control of said Lawrent, nor
In the former opinion it was held that the complaint, as then framed, counted upon negligence in not delaying the starting of the machinery while Peterson was in the elevator. This, it was decided, was the negligence of Lawrent and not of the appellant.
It was there also declared that the only allegation of Lawrent’s relation to the master was that he (Lawrent) was the appellant’s agent with full authority ‘ ‘ to control the work of and to employ and discharge the plaintiff from his employment, as well as other servants of said defendant.” It was held that “the questions of rank and of power to employ servants are not controlling in the consideration of the relation of Lawrent to the appellant,” but that “the controlling consideration is whether that act or omission is one arising from a duty owing by the master to the servant, the discharge of which duty is entrusted by the master to the negligent servant.”
In the complaint now under consideration the only averments of any materiality, concerning the alleged negligent acts of Lawrent and the relation he sustained to appellant, in addition to those contained in the original complaint, are that Lawrent failed to detach the endless chains from the engine, and that it was his duty
As was said by this court in a recent case concerning the rule in such cases: “It is the duty of the master to provide his servants with safe working places; to provide for their use safe machinery, appliances, tools and implements; to provide safe materials, * * careful and competent fellow-servants; to keep machinery, tools and implements in repair, and working places in safe condition; to take notice of the liability of machinery and appliances to wear out and become defective with age and use; to instruct the young and inexperienced servants as to their duties, and warn them of danger and how to avoid it; to regulate and so conduct his business that his servants may be the least exposed to danger, and to do nothing by which the danger to his servants may be unnecessarily augmented.” Cole Bros. v. Wood, 11 Ind. App. 37, 48.
In the present case it is not the theory of the complaint that the appellant was negligent in the performance of any of these duties. There is consequently no question as to a failure to provide a safe place to work, or allowing any portion of the machinery to remain out of repair, or to provide a competent person to perform the acts, the omission of which is relied upon as constituting the negligence in this case. The theory of the complaint is that Lawrent was a vice-principal, whose duty it was to order the appellee to perform the work in which he was engaged when injured; that he did order him to do so; that such work was extremely perilous because appellee was required to stand upon the buckets attached to the machinery when the engine was likely to start at any time ; that the danger could have been
The fact that Lawrent was a superintendent or boss in the department in which he and appellee were at work in cleaning the wheels, did not necessarily make him a vice principal in the performance or omission of the acts which it is alleged were the cause of appellee’s injuries. Appellee and Lawrent were fellow servants in the work of cleaning the sprocket wheels. Lawrent, it is true, also had other duties assigned him, but they were not such, according to the holding upon the former appeal, as might not have been delegated to any other servant by the appellee. This court has had occasion to give construction to the decision of the Supreme Court rendered on the former hearing, and in doing so, Lotz, J., speaking for a majority of the court, said: £ £ The acts that increased his [Peterson’s] peril, were starting the machinery, coupled with the failure to give him warning. Both of these, the starting of the machinery and the failure to warn, are such acts as usually and naturally devolve upon a fellow servant.” Cole Brothers v. Wood, supra, p. 60.
Nothing has been added by the amendment to the complaint that changes the statement of facts so as to take the case out of the rule applicable to fellow-servants as laid down by the Supreme Court on the former appeal. The additional duty alleged to have devolved upon Lawrent, viz: that of unfastening the chains, was of the same character as those alleged to have devolved upon him in the original complaint. When the appellant had provided a competent person, such as Lawrent, to perform these acts, it had done all the law demanded at its hands.
The appellant could not be held to know or anticipate that Lawrent would fail in the proper performance of the duties entrusted to him.
The court, therefore, erred in overruling the demurrer to the amended complaint.
Judgment reversed.