The Salem Stone and Lime Company v. Chastain

• Decision Date: 15 March 1894
• Docket Number: 1,262
• Parties: THE SALEM STONE AND LIME COMPANY v. CHASTAIN
• Court: Indiana Appellate Court

36 N.E. 910

9 Ind.App. 453

THE SALEM STONE AND LIME COMPANY v. CHASTAIN

No. 1,262

Court of Appeals of Indiana

March 15, 1894

From the Washington Circuit Court.

Judgment reversed, with instructions to sustain the demurrer to each paragraph of the complaint.

M. Z Stannard, for appellant.

J. A Zaring and M. B. Hottel, for appellee.

OPINION

ROSS J.

The appellee sued the appellant in the court below, and recovered damages in the sum of $ 2,500, for personal injuries received by him while in its employ as a scabbler in its stone quarry.

The complaint is in two paragraphs, to each of which a demurrer for want of facts was overruled, and exceptions saved.

These rulings of the court are assigned as error in this court.

The first paragraph of the complaint is as follows "Plaintiff in the above entitled cause complains of defendant, and, for cause, says that defendant is now, and was, on the 11th day of February, 1891, a corporation, duly organized and doing business under the laws of the State of Indiana, and in and under said corporate name of The Salem Stone and Lime Company; that as such corporation, and in said corporate name, defendant owns and operates the stone quarry and the machinery and equipments therewith connected and attached, and is engaged in the business of quarrying and getting out stone and shipping the same to the different parts of the country, and in the manufacture and shipping of lime made from the same; that the defendant, on the 11th day of February, 1891, had in its employ, assisting them in the operation of their said quarry, the plaintiff, who was engaged as a scabbler in said quarry; that defendant, on said day, also had in its service its manager and foreman at its said quarry, its agent and vice-principal, one August Schultz, who hired, discharged, superintended, and bossed the hands employed at said quarry, and was general overseer of their work; that on said 11th day of February, 1891, this plaintiff was engaged in the line of his duty in scabbling a stone, and had to make a break in said stone before beginning to scabble the same; that he, with others, drilled holes in said stone preparatory to breaking the same, and plaintiff had got down off said stone to get the wedges and slips to break said stone; that while down, those engaged with plaintiff in said work broke the same off, and plaintiff, in the line of his duty, laid a drill upon the said stone preparatory to prying off the broken part of said stone, and was preparing to get upon said stone to assist in the prying off said broken part, when defendant's said agent and vice-principal, the said Schultz, in the line of his duty as such agent, walked up and took the drill, and without any warning or notice to plaintiff, and when plaintiff was in a position that he could not see him, carelessly and negligently pried said broken part of said stone off, and it fell and struck a plank which caught plaintiff, and without any fault or negligence on his, plaintiff's, part, he was then and thereby thrown up into the air and over the ledge of stone upon which he was working, and fell between a stone and the ledge of stone upon which he was working, and was thereby bruised, mashed and mangled all over his body, head and limbs; his knee cap being bursted, his shoulder mashed and bruised, and his head mashed, and was bruised, mashed, and made sore in the breast and lungs, from all of which he lay in bed and suffered great pain and agony of body and mind for a period of about four months,...