46 Ind. App. 303 | Ind. Ct. App. | 1910
Lead Opinion
Appellee, as administrator of the estate of Daniel P. Horner, deceased, recovered a judgment for damages against appellant, for the death of said Horner, caused by the alleged negligence of appellant.
There were two paragraphs of complaint, a demurrer to each of which, for want of sufficient facts, was overruled. The court also overruled appellant’s motion for a new trial.
The second paragraph was like the first, except that it described the negligence of the foreman in what he did, and alleged his knowledge of the defective condition qf the railing, and that decedent’s fall and injury were caused by the alleged negligence of appellant and of the foreman.
It is claimed, on behalf of appellant, that the second paragraph was based on the second clause of the first section of the employers’ liability act (Acts 1893 p. 293, §8017 Burns 1908), which was held invalid as applied to such corporations as appellant. Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 14 L. R. A. (N. S.) 418. The person whose order the decedent obeyed is not by the pleading shown to be a vice-principal. He is represented as acting in the capacity of a foreman, which is compatible with being a fellow servant of the decedent. So far as the averment in either paragraph, that decedent was bound to obey and did obey the foreman, is concerned, it can have no greater significance than to aid in showing that the decedent was acting in the line of his duty under his employment. But in each paragraph the injury
It was assigned in the motion for a new trial that the verdict was not sustained by sufficient evidence, and was contrary to law.
There was evidence that the railing was rusty, and when at a previous time the foreman leaned .against it, it swayed out. It was smeared with grease and tar. The tank was eight feet long, two feet deep, and two feet wide. There was testimony that it weighed 250 pounds, and also testimony that it weighed from 125 to. 150 pounds.
There were other methods by which the employes could have hoisted the tank and put it in the desired place without dragging it over the railing of the bridge. When the manager gave the order to place the tank at a certain point, it was outside the building, and could have been moved to the desired place by passing it over a nearly level-top, low, coal shed, and through a window. There were two sets of blocks and tackles by which it might have been hoisted without touching the railing. These methods were available to the employes.
Under the facts shown by the evidence, Shinnebarger must be regarded as acting in the capacity of a fellow servant of the employes with whom he was working in the hoisting of the tank. It cannot be said that the railing which broke was being put to a use to which it was adapted, or for which it was constructed. It broke down in a use more dangerous
The proper use of machinery and appliances is a duty which all employes owe to their employer.
Judgment reversed, and cause remanded for a new trial.
Dissenting Opinion
Dissenting Opinion.
In my opinion, under the facts shown, Shinnebarger was a vice-principal, doing the work of the master, when he directed how the tank should be placed, and ordered decedent to leave his usual occupation as fireman and go upon the bridge to assist in placing the tank. 'If this is true, the use of the bridge for that purpose could hardly be said to be an unforeseen use, since such use was at the direction of the master. That which is ordered to be done by the master must be considered to have been foreseen by him. It is not denied that the rusted and defective railing was the proximate cause of the injury. Had appellant discharged its duty, and furnished a railing reasonably fit for the purpose for which it was designed, the employe would not have lost his life. The fact that a weight, not in excess of an additional man, was being moved, at the time the decedent lost his life, by reason of a defective instrumentality furnished for his protection, 'does not authorize this court to ignore the finding of the jury and the judgment of the trial court. The opinion does not accord to the action of the jury and trial court those presumptions to which they are by law entitled.