Cincinnati, H.&D. Ry. Co. v. Phinney

• Decision Date: 14 March 1906
• Docket Number: No. 5,442.,5,442.
• Citation: 77 N.E. 296,38 Ind.App. 546
• Court: Indiana Appellate Court
• Parties: CINCINNATI, H. & D. RY. CO. v. PHINNEY.

38 Ind.App. 546

77 N.E. 296

CINCINNATI, H. & D. RY. CO.

v.PHINNEY.

No. 5,442.^*

Appellate Court of Indiana, Division No. 1.

March 14, 1906.

Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.

Action by Claude E. Phinney against the Cincinnati, Hamilton & Dayton Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.E. J. Jacoby and Gavin, Davis & Gentry, for appellant. Wymond J. Beckett, and Elliott, Elliott & Littleton, for appellee.

BLACK, P. J.

The appellee was injured while in the performance of his duty as a machinist in the employment of the appellant at its machine shop in Lima, Ohio, engaged in using a handle punch with the aid of a helper in removing a bolt from a smoke arch on a locomotive engine, the injury being the destruction of one of the appellee's eyes by being struck by a sliver or scale of iron, which flew off the head or pole of the handle punch, which the appellee was holding by means of its wooden handle upon the bolt, while the punch was struck with a hammer by the helper. It was alleged in the complaint that the appellant neglected to keep the handle punch in proper repair, and in a reasonably safe condition to do the work it was intended to do, and for which it was used; that it was furnished by the appellant to the appellee through his helper, to drive out and remove bolts from the smoke arch; that its pole or head, by long use, had become burred or split, and pounded down and spread out and rough and scaly; that the appellant knew its condition and, in the exercise of ordinary care, should have repaired and reformed the head of the punch, but it negligently failed to do so, and negligently permitted the punch to be used in its factory by said employés until its head had become battered, and was in the condition aforesaid, and also negligently failed to repair the punch and to put its head in proper condition and shape to make it safe and servicable; that in the performance of his duty and in the line of his work, it was the appellee's duty to take hold of the handle of the punch, and to hold the punch against the bolt in the smoke arch, and it was the duty of his helper to strike the punch with a hammer and by that means to drive the bolt out of the smoke arch; that the appellee placed the punch upon the bolt in a proper and careful manner and his helper struck it in the usual way; that by reason of the unsafe, burred, and negligent condition in which the punch head had been so left, the blow upon it by the helper “caused a sliver to fly off of the head of the hammer and into” appellee's eye, etc.; that the injury to his eye was caused by the negligence of the appellee, as aforesaid, in failing to keep said tool in proper and safe condition, and in furnishing the appellee with said defective tool to perform his work as aforesaid; that he had no knowledge that the tool was defective as aforesaid, and in the exercise of ordinary care could not have discovered the defective and dangerous condition of the tool before the happening of the accident; that by reason of the negligence of the appellant the scale flew off of said punch and into the appellee's right eye, etc.

Some objections are suggested by counsel to the complaint, but we think it proper to pass to a consideration of the case upon its real merits, rather than to send the case back for a correction of the pleading, if it can be said to be defective, and to thus prolong unnecessarily a controversy over the facts, which sufficiently appear in the record. With the general verdict in favor of the appellee the jury returned answers to interrogatories, whereby they found specially that the appellee was employed by the appellant from July 15, 1902, to March 24, 1903, as a machinist; that at the time of his injury he had been engaged by the appellant in such capacity about seven months; that at the time he was employed by the appellant he was a skilled mechanic in the line in which he was employed; that he received his injury at 1:20 o'clock in the afternoon; that the punch which he was using at the time he received his injury was not in the condition of punches in common use by railway companies in that...