30 Ind. App. 253 | Ind. Ct. App. | 1902
Tliis was an action for damages growing out of a personal injury received by appellee on the 9th of March, 1899, while a servant in the employ of appellant, operating a machine commonly called a ripsaw. Appellant is a corporation engaged in the manufacture of threshers, engines, sawmills, etc., operating its plant in the city of Richmond. At the time appellee received his injury he was a man thirty-six years of age, a carpenter by trade, and had been in the employ of appellant several weeks prior to the 9th- of March, when, while engaged in operating the ripsaw, his hand was caught by the saw and all the fingers of his left hand were cut off.
The errors assigned and argued are: (1) Error of the trial court in overruling appellant’s demurrer to the complaint; (2) error in overruling the motion for a new trial; (3) error in overruling appellant’s motion for judgment upon the special findings.
The complaint, as heretofore stated, is in a single paragraph and avers that appellee was, on the 9th day of March, and for several weeks prior thereto, in the employ of the appellant, and was ignorant and inexperienced in the operation of a ripsaw, and was not acquainted with the dangers incident to the operation thereof; that prior to the 9th day of March, and at the time he was employed by the appellant, he informed the appellant that he was ignorant and inexperienced, and thereupon appellant stated to him, by its superintendent, that the work to which he should be assigned would not be dangerous, and that he would be given all necessary and proper instruction in order to enable him safely to perform such work, all of which representations and statements appellee believed and relied upon; that appellant has as a part of its equipment of machinery a certain circular saw set in a sawdable which was connected with the steam power by the necessary mechanical devices,
Counsel for appellant in discussing the sufficiency of the complaint say: “The only negligence sufficiently charged is in suffering the saw and table to be defective in two particulars: The top or surface of the table is charged to be worn and uneven, and the slot in which the saw revolved through the top of the table was by long use worn and widened to the dimensions which are left blank. The saw-table, with its connections and its operations are so described as that the court will know that the conditions described
Counsel for appellant state the propositions of law correctly, and it is upon this proposition that the counsel have based their able argument in discussing nearly every question presented by the record in this appeal. It becomes necessary for us, then, to determine, in the first instance, where the sufficiency of the complaint is attacked, whether or not the facts pleaded bring the case within the operation of the rule stated, and to determine as to the other questions raised by appellant’s counsel, whether or not the undisputed facts bring the case within the rule. Giving the rule of law stated its widest scope, as applicable to the averments of the complaint for damages brought by a servant against a master on account of an injury caused by defective machinery, as in this ease, still it is only necessary that the plaintiff allege that he did not know of such defect or danger, and such allegations will repel both actual and implied knowledge. Evansville, etc., R. Co. v. Duel, 134 Ind. 156; Consolidated Stone Co. v. Summit, 152 Ind. 297. It is when applied to the evidence necessary to sustain the averment of want of knowledge of the defect or danger that full force and. effect is given to the rule of assumed risk. Peerless Stone Co. v. Wray, 143 Ind. 574; Wabash R. Co. v. Ray, 152 Ind. 392; Consolidated Stone Co. v. Summit, supra. The complaint in this case was sufficient to withstand the demurrer for want of facts. As before stated, the
The facts so found were, in substance, as follows: The saw-table and saw described in, appellee’s complaint was an ordinary table about twelve feet long, with flat top and with a slot therein about eighteen inches in length to admit the circular saw used therein. It was simple in its construction and operation, and easily understood by a carpenter of ten or twelve years’ experience. No part of the saw which extended above the table, nor the slot in which the saw revolved, was in any way concealed, and said slot and the top of the table around the saw was open and obvious to any one operating the saw; that appellee during the eight days’ time he operated the machine did not have equal opportunity with appellant to see and know the condition of the saw-table as to its top surface and slot; that appellee was at the time of his injury a man about thirty-six years old, active, vigorous, in good health, in possession of all his senses unimpaired, and with ten or twelve years’ experience as a carpenter, and with four years’ experience as an engineer.
It will be seen that there is nothing in the answers to the interrogatories showing that appellee had any experience in the operation of a saw of the kind which injured him, or that he knew or realized in any way the danger to which he was exposed. Monks, C. J., in Consolidated Stone Co. v. Summit, supra, said: “Moreover, if the answers to the interrogatories showed that before his injury he saw the seam in said stone, or that by the exercise of ordinary care he could have seen it, such fact, if found, would not, as against the general verdict, charge appellee with the assumption of the risks growing out of suck defect. This is true because the general verdict finds that appellee did not know, and could not have known by the exercise of ordinary care, the risk to which said seam exposed him, and that he did not assume the risk and hazards on account thereof.
It is insisted that the verdict is not sustained by sufficient evidence and is contrary to law. We have carefully examined all the evidence in this case, and we think that under the rule as announced in Consolidated Stone Co. v. Summit, supra, the whole case, upon the facts produced by appellee, properly went ..to the jury. The question of whether or not appellee assumed the risk growing out of the use of the defective table, was one of the questions of fact for the jury, and there was evidence to show that appellee was entirely
A careful examination of the instructions given by the court to the jury convinces us that the jury was fully and correctly informed as to the law applicable to the evidence and issues in this cause, and that appellant has no reason to complain, either as to the instructions given or refused.
We find no error. Judgment affirmed.