Atlas Engine Works v. Randall

Decision Date11 March 1885
Docket Number11,742
Citation100 Ind. 293
PartiesThe Atlas Engine Works v. Randall
CourtIndiana Supreme Court

From the Marion Superior Court.

Judgment reversed, with costs.

B Harrison, W. H. H. Miller and J. B. Elam, for appellant.

H. N Spaan, for appellee.

OPINION

Mitchell J.

This action was brought by Louis E. Randall to recover damages for an injury sustained by him while in the service of the Atlas Engine Works.

The evidence tended to show that the appellee was within a few days of nineteen years old at the time he engaged in the appellant's service; that he was an intelligent, active young man, having the ordinary experience and development of persons of that age; that he had worked some about a blacksmith shop, at farming and bridge building, but had no particular experience with machinery such as that used in the appellant's shops.

He was employed by the superintendent of the appellant's boiler department as a helper to one Smith Walker, whose business was to attend to the operation of a certain machine called a "flange punch," which was a machine used for drilling or punching holes in boiler iron. The evidence tended to show that he was subject to the direction of Walker, so far as receiving from him instructions as to his duties in connection with the operations of this machine. This machine consisted of a heavy iron frame four or five feet in length, and about twelve or fourteen inches wide, and of suitable height, and had, as part of its gearing, to give motion to the punch which was adjusted to it, two cog-wheels indenting into each other, the larger of which was forty-two inches in diameter and the smaller seven inches. These were operated by a belt passing over a pulley connected with the machine, thence passing over a pulley on a line-shaft attached to the building. When in motion, the evidence tended to show that the larger cog-wheel made from forty to fifty revolutions per minute, and the smaller one about two hundred, and that the point of indentation of the two wheels was about nine inches from the top of the frame, and from three to five inches out from the side of the body or frame.

The plaintiff testified that on the fifth day after he entered the defendant's service, he was directed by Walker to procure some "waste" from the tool-room, and, during the temporary absence of Walker from the machine, wipe off the top of the frame, while the wheels were in motion. He also testified that he was not cautioned by Walker, or any one else, concerning the danger of getting his hands or person into the cog-wheels, and that he had no directions how to prevent his hands from becoming involved in these wheels while wiping off the top of the frame. On the other hand, Walker testified that he was temporarily called away from his post by the superintendent; that he gave the appellee no directions to wipe off the machine at all; that there was no particular necessity for wiping it off at that time; and that he had on several occasions before that cautioned him not to get his "hands in the cog-wheels," and not to go too close to the wheels.

While engaged in wiping off the top of the frame of this machine, the appellee's hand was caught between the cog-wheels, and was so crushed and lacerated that the loss of all, save the thumb and one finger, resulted.

It was shown that after the injury the cog-wheels were covered, or "boxed," as it is termed, and that the danger in leaving the wheels exposed was not so much to persons at work with or about the machine, as to persons passing by it.

The injury appears to have occurred in this way: While the appellee was wiping off the top of the machine, instead of holding the "waste" compactly in his hand, he allowed shreds or ends of it to dangle below his hand, and the ends so hanging down becoming involved in the cog-wheels, his hand was drawn into the wheels and injured as described.

There was a general verdict for the plaintiff below, and with the general verdict the jury returned answers to special interrogatories.

By these answers the jury returned that the plaintiff and Smith Walker were co-employees, and that he was a young man about nineteen years old at the time of the injury, of average intelligence and capacity, and that the danger from the cog-wheels was apparent to any person of ordinary intelligence and capacity.

Over motions for a new trial, and for judgment on the special findings of the jury, the plaintiff had judgment.

Counsel for appellant contend that there is a fatal variance in the proof as to some of the essential averments in the complaint.

It is averred in the complaint that the machine at which the plaintiff was injured was defective in construction, in that it required frequent cleaning, and could not be stopped for that purpose, but had to be cleaned while in motion; that the cog-wheels, being exposed and without covering, were a source of constant danger to those operating the machine, and that the defendant, with full knowledge of the plaintiff's youth and inexperience, "directed, ordered and compelled" him to clean it while in motion.

It is insisted that there was no evidence whatever showing that the defendant ordered, directed or compelled the plaintiff to clean the machine while it was in motion. From the evidence given, the jury may have found that Randall was employed by the superintendent of the boiler department, and that he was subject to Walker's orders. There is also evidence from which it may have been found that Walker directed him to wipe off the top of the machine while it was in motion, without giving him any caution with respect to the danger of so doing.

The argument of counsel is that Walker and Randall were fellow servants engaged in the same general employment, and conceding that Walker did order or direct him as claimed, without giving him notice or proper caution, yet, as this was but the negligence or fault of a fellow servant, it is said this can not be imputed to the master. So far as the service in which they were engaged pertained to their common employment, in operating the machine, they were beyond doubt fellow servants. If either sustained an injury from the negligence of the other, while so engaged, the master is not liable. It is claimed, however, that the appellee was put under subjection to Walker, and that he was directed to obey his orders, and that he was not cautioned of the danger of the particular service required of him when he received the injury.

One of the well recognized duties of a master is not to expose an inexperienced servant, at whose hands he requires a dangerous service, to such danger without giving him warning. He must also give him such instruction as will enable him to avoid injury, unless both the danger and the means of avoiding it while he is performing the service required are apparent. These are obligations of the master, and he can not exempt himself from liability by delegating his power to command the servant to another upon whom the obligation to instruct and caution is also imposed.

If the agent or servant upon whom the power to command is given exercises the power, and fails to discharge the obligation to the hurt of the servant who is without fault, the failure is that of the master, and he must...

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