American Car and Foundry Company v. Adams
| Decision Date | 26 November 1912 |
| Docket Number | 22,073 |
| Citation | 99 N.E. 993,178 Ind. 607 |
| Parties | American Car and Foundry Company v. Adams |
| Court | Indiana Supreme Court |
From Floyd Circuit Court, William C. Utz, Judge.
Action by Benjamin Adams against the American Car and Foundry Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
M. Z Stannard and Jonas G. Howard, Jr., for appellant.
Evan B Stotsenburg and John H. Weathers, for appellee.
Action by appellee to recover for personal injuries. The court overruled a demurrer to an amended third paragraph of complaint. Answer in general denial. Trial by jury. Appellant's motion for judgment on the answers to interrogatories overruled. Motion for a new trial overruled. Judgment in favor of appellee on a general verdict.
Errors assigned are: (1) Overruling appellant's demurrer to the amended third paragraph of complaint; (2) overruling appellant's motion for judgment on the jury's answers to interrogatories; (3) overruling motion for a new trial.
The amended third paragraph of complaint, on which this case was tried, alleges that defendant is a corporation owning and operating a factory in Clark county, Indiana, engaged in building freight- and passenger-cars, and employing a large number of men; that on March 2, 1907, plaintiff was employed by defendant as a common laborer in said factory; that defendant owned a "punching" machine, and operated it in its said factory to drill holes in iron and steel plates; that said machine consisted, among other mechanisms, of a die, a flywheel five feet in diameter, and four cogwheels, with a board on either side of said machine, forming a trough to catch waste oil, etc., making it necessary frequently to "wipe off" or clean said boards, which brought the hand of the operator in close proximity to said cogs, and making it a dangerous task; "that a guard could have been placed on and around said cogs so as to have prevented the hand of an operator cleaning said machine from coming in contact with and being drawn into said cogs; that said cogs could have been properly guarded without any interference with the proper operation of said machine, and said guard would have prevented any injury from said danger from said cogs while cleaning said machine as aforesaid, for the reason that said guard would have prevented the waste plaintiff was using, as heretofore alleged, and plaintiff's hand from being caught and drawn into said cogs; plaintiff says that defendant then and there, well knowing that said cogs had not been guarded, negligently failed to provide a guard for said cogs and to so guard the same, in violation of the statutes of the State of Indiana then in force relative thereto; that by reason of defendant so negligently failing to guard said cogs as aforesaid, this plaintiff was injured as hereinafter set out," that on March 16, 1907, defendant's foreman directed and ordered him to leave his work, and assist one Miller as a helper in operating said "punching machine", subject to the orders and directions of said Miller; that just before noon on said day Miller ordered plaintiff to assist him in wiping off and cleaning said machine, while said machine was in motion; that, in obedience to said orders and directions, plaintiff took a piece of waste, provided by defendant for this purpose, and proceeded to wipe off and clean said machine, by cleaning the boards forming the trough of said machine; that while so wiping off or cleaning said trough, because of the failure of defendant to guard the aforesaid cogs of said machine, the same being exposed, the waste held in plaintiff's hand was caught by the cogs, drawing his right hand into said cogwheels, whereby his said hand was lacerated, mashed and mangled, two of his fingers were torn off, and he was thereby crippled, maimed and injured, and became permanently crippled, causing him great bodily and mental distress, and diminishing his power to earn money, etc.
Appellant earnestly insists that its demurrer to the amended third paragraph of the complaint should have been sustained, for the reason "that the complaint affirmatively declares the appellee to have been guilty of contributory negligence." We do not think the complaint affirmatively shows contributory negligence on the part of appellee.
Appellee contends, also, that the complaint is defective, in that it alleges that appellee was not acting within the scope of his employment, and that he was acting under orders of a fellow servant.
The complaint charges that plaintiff was "a common laborer in and about defendant's factory." We take this to mean that his services were subject to orders of his foreman, "that he was ordered by one of the foremen of the defendant, who represented the defendant in that behalf, to leave the work in which he was engaged and to thereafter assist Miller in operating said 'punching' machine as a helper, * * * that while he was so helping and assisting said Miller he was subject to his orders and directions, * * * Miller ordered plaintiff to assist him in wiping off and cleaning said machine," etc. This is a specific charge which we think is a complete answer to appellant's contention on this point.
Appellant contends further, that the complaint is insufficient because of a failure to allege some duty owing by appellee to appellant. The complaint charges the violation of a duty imposed on appellant by statute. The statute referred to is § 9 of the act of 1899 (Acts 1899 p. 231, § 8029 Burns 1908), the title to which, in part, is in these words: "An act concerning labor, and providing means for protecting the liberty, safety and health of laborers, providing for its enforcement," etc. Section 9, so far as it relates to our subject, provides that "all vats, pans, saws, planers, cogs, gearing, belting, shafting, set screws, and machinery of every description therein [manufacturing, etc., establishments] shall be properly guarded."
The court did not err in overruling the demurrer to the complaint.
Contributory negligence is a matter of defense, and may be proved under the answer of general denial. § 362 Burns 1908, Acts 1899 p. 58. It is not necessary that plaintiff should allege or prove a want of contributory negligence. This burden rests on defendant. Chicago, etc., R. Co. v. La Porte (1904), 33 Ind.App. 691, 71 N.E. 166; Buehner Chair Co. v. Feulner (1905), 164 Ind. 368, 73 N.E. 816; Indiana, etc., Oil Co. v. O'Brien (1903), 160 Ind. 266, 65 N.E. 918, 66 N.E. 742; Pittsburgh, etc., R. Co. v. Cozatt (1907), 39 Ind.App. 682, 79 N.E. 534. The burden of proving contributory negligence was on appellant, consequently we cannot say that from the evidence the jury was not warranted in finding that appellee was free from contributory negligence in permitting the waste used in cleaning the machine to come in contact with the revolving cogwheels. American Car, etc., Co. v. Vance (1912), 177 Ind. 78, 97 N.E. 327. "The master having subjected the servant to the command of another without information or caution with respect to all such obligations as the master owes, the other stands in the master's place, and this is so notwithstanding the two servants are, as regards the common employment, fellow servants." Atlas Engine Works v. Randall (1885), 100 Ind. 293, 50 Am. Rep. 798.
The statute does not describe the manner of guarding machines consequently, what shall constitute a proper guard is a question of fact to be determined by the jury from the character of the particular machine and the dangers to be avoided. The fundamental purpose of the factory act was to protect workingmen against avoidable dangers. The breach of duty was sufficiently alleged in the complaint. Green v. American Car, etc., Co. (1904), ...
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