180 Ind. 296 | Ind. | 1913
Action by appellee against appellant for personal injuries. It is alleged in the complaint that appellant was engaged in manufacturing car springs, and tested its products by means of a machine called a spring tester; that appellee’s hand was injured in the machine because of the negligence of a fellow servant named Barman who was operating the machine, and who was incompetent to do such work; that defendant was negligent in the employment of such incompetent operator.
In the bed of this machine was a plunger, driven upward, by steam power, against the spring inserted, so as to crush the same together against a stationary top, and thus test its strength and elasticity. The plunger was operated by pulling a lever, and this work was done by Barman. "When injured, the appellee was placing a spring on the plunger, and before he had removed his hand from the spring, the operator released the plunger, which drove the spring, with appellee’s hand on it, against the top of the machine, and thereby cut off some of appellee’s fingers. In the proper operation of the machine, the operator should wait until the employe, inserting the spring, should have removed his hand therefrom, before moving the lever which released the plunger. This accident happened because the operator, Barman, pulled the lever too soon.
There was a trial by jury, verdict for appellee, with an
Under the reasons assigned in the motion for a new trial, it is contended here that the evidence is insufficient to sustain the verdict. One of the claims is that appellee was, when injured, not in the line of his employment. We regard the contrary as established by the evidence.
Appellant maintains there is an entire absence of evidence to show the failure of any duty on its part, in relation to the employment of the operator Barman. The burden was on appellee to prove (1) that his injury was the proximate result of the unfitness of Barman to discharge the duties assigned him, and (2) that, in employing Barman, appellant knew, or, in the exercise of ordinary care and prudence, should have known, of such unfitness. The complaint makes no charge of negligence because of the retention of Barman in its employ.
The law requires of the master that he shall use due care in engaging the services of those who are reasonably fit and competent for the performance of the respective duties assigned them. 3 Labatt, Master and Servant (2d ed.) §1079. The rule requires the exercise of ordinary care, such as men of ordinary prudence observe. The question of the competency of the servant includes a consideration of his physical, moral and mental qualifications, for the task assigned, and if the employment be for the operation of a machine, especially of an intricate nature, also of his skill and experience with reference to such or similar machinery.
There is no evidence here whatever of any physical or moral defect in Barman. Formerly he had been employed on farms and in cement construction work. About three months before the accident he was em
It is claimed by appellee that the jury was warranted in finding that Barman was not a person of ordinary intelligence. It may be that in some respects this claim finds some support in the evidence. His knowledge of arithmetic was below that of the average man, but there is no evidence that his lack of mental qualifications in any way affected his competency to operate the machine in controversy. Very little skill was required in the simple operation of this tester, and the injury did not result from unskilfulness, but from lack of watchfulness, — inattention. Harvey v.
It is true that the accident happened only two or three days after Barman had been assigned to his new duties, hut under the facts disclosed, the short experience of Barman was not material. Ohio, etc., R. Co. v. Dunn (1894), 138 Ind. 18, 36 N. E. 702, 37 N. E. 546; Texas, etc., R. Co. v. Berry (1887), 67 Tex. 238, 5 S. W. 817. The accident did not result from lack of experience, for Barman well knew how the machine was operated. There was no evidence that warranted the jury in finding that any neglect on appellant’s part caused, or helped to cause, appellee’s injury.
Judgment reversed with instructions to grant appellant’s motion for a new trial.