American Car And Foundry Company v. Vance

• Decision Date: 30 January 1912
• Docket Number: 22,085
• Citation: 97 N.E. 327,177 Ind. 78
• Parties: American Car and Foundry Company v. Vance
• Court: Indiana Supreme Court

97 N.E. 327

177 Ind. 78

American Car and Foundry Company v. Vance

No. 22,085

Supreme Court of Indiana

January 30, 1912

From Clark Circuit Court; Harry C. Montgomery, Judge.

Action by Arthur R. Vance against the American Car and Foundry Company. From a judgment for plaintiff, defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Affirmed.

M. Z Stannard, and Jonas G. Howard, Jr., for appellant.

Stotsenburg & Weathers, and James W. Fortune, for appellee.

OPINION

Morris, C. J.

Suit by appellee against appellant for personal injuries. The court overruled a demurrer to the complaint. Answer of general denial. Trial by jury. Appellant's motion for judgment on jury's answers to interrogatories overruled. Motion for new trial overruled. Judgment for $ 625 for appellee on the verdict.

The errors assigned, and relied on for reversal, were overruling the demurrer to the complaint, the motion for judgment on answers to interrogatories, and the motion for a new trial. The ground of the latter motion was the alleged insufficiency of the evidence.

The complaint alleges that on and prior to November 26, 1907 appellant owned and operated a car factory at Clarksville, and among the various kinds of machinery used therein was a cut-off saw; that appellee was employed to operate said saw, and it was a part of his duties under such employment to dress a belt, while it was revolving around a pulley, by placing oil thereon to prevent the belt from slipping on the revolving pulleys; the belt was near the saw, and was necessarily used in operating the saw; that in dressing the belt he was required to, and did, use a stick, which he held in his right hand, with which to apply the oil to the belt while it was in motion; that appellant negligently, and in violation of the statute law of Indiana, failed to furnish and supply the saw with a proper guard or covering; that it could have been properly guarded by placing a band of tin or wood over and around it, without rendering it useless for the purposes for which it was intended, and thereby the injury to plaintiff, caused by his hand coming in contact with the saw, have been prevented; that his injury was proximately caused by the failure to guard the saw; that the use of the saw, while unguarded, was dangerous, which defendant knew, and it also knew that the saw was unguarded at the time of the injury. The complaint further alleges that while dressing the belt, the "stick, which the plaintiff was using in oiling or dressing said belt, came in contact with said belt as the same was revolving around said pulley, as aforesaid, and knocked his right hand, in which said piece of timber or stick was held, at, upon and against said cut-off or stop saw, and that said saw was then and there unguarded as aforesaid, and that he was then and there injured by said unguarded saw. Plaintiff says that at the time his right hand came in contact with said saw, said saw was in rapid motion, and that by said contact of his right hand with said saw, while the same was in motion, as aforesaid, the third and fourth fingers of his right hand were cut, bruised and lacerated and injured in the joints and tendons, and that his said fingers were then and there and thereby injured to such an extent that he has lost the use of the same, and that they have been permanently injured, as aforesaid." It is further alleged that the injury was caused without any negligence on the part of appellee.

Counsel for appellant claim that the complaint is not sufficient, because it asserts the alleged failure to guard the saw was only a condition, and the act of permitting the stick to come in contact with the belt was the proximate cause of the injury.

We think the complaint is not open to the above objection. § 8029 Burns 1908, Acts 1899 p. 231; Bessler v. Laughlin (1907), 168 Ind. 38, 40, 41, 42, 79 N.E. 1033; Balzer v. Warring (1911), 176 Ind. 585, 95 N.E. 257.

Appellant also claims that the complaint is insufficient to repel a demurrer, because it shows that appellee was guilty of contributory negligence in, as appellant contends, needlessly permitting the stick to come in contact with a rapidly revolving belt.

If, notwithstanding the allegation in the complaint of appellee's freedom from contributory negligence, specific allegations therein show that he was not thus free, the specific averments will control the general one. Davis Coal Co. v. Polland (1902), 158 Ind. 607, 62 N.E. 492, 92 Am. St. 319; Pittsburgh, etc., R. Co. v. Martin (1901), 157 Ind. 216, 61 N.E. 229; Citizens St. R. Co. v. Sutton (1897), 148 Ind. 169, 46 N.E. 462, 47 N.E. 462, and cases cited; Pennsylvania Co. v. McCormack (1892), 131 Ind. 250, 30 N.E. 27, and cases cited; Wolfe v. Peirce (1900), 24 Ind.App. 680, 57 N.E. 555, and cases cited; King v. Laycock Power House Co. (1910), 46 Ind.App. 420, 92 N.E. 741.

In this pleading we do not think the inference can fairly be drawn from any averment, that the plaintiff needlessly permitted the stick to come in contact with the rapidly traveling belt.

Appellant, under its proposition that the verdict is not sustained by sufficient evidence, contends (1) that appellee was guilty of contributory negligence in permitting the stick, or his hand holding it, to come in contact with the belt; (2) that the saw was properly guarded; (3) that the evidence shows that plaintiff voluntarily elected to pursue a dangerous method of dressing the belt, when a safe method was open to him.

From the evidence, including photographs of the machine, the following uncontroverted facts are elicited: The power that operated the machine was transmitted primarily through a countershaft, fastened less than a foot above the floor, and parallel with, and about thirty inches west of, the operator's table. On this countershaft was fastened a large pulley, about fifteen inches in diameter. The countershaft extended south of the pulley about one foot. A vertical framework of iron, about four feet high, rested on the countershaft, or the framework thereof, on either side of the pulley, and the top of this frame connected with a lever on the east side of the table. Within this framework were set two four-inch pulleys, called "idlers." The axis of the lower idler was eighteen or twenty inches above that of the large pulley, and the upper idler was just far enough above to permit a belt to pass between them. The axis of the three pulleys was in line. The top of this framework had an east-and-west motion of about eighteen inches. The bottom was stationary. Hinged on this pulley framework, nearly at right angles thereto, about three feet above the floor, was a frame, about three feet long, extending east, at the end of which was attached a mandrel, parallel with the table, and on the south end of which mandrel was fastened the cut-off, circular saw. On this mandrel, near the saw, was fastened a four-inch pulley. Power was transmitted from the countershaft to the saw mandrel, by means of a single belt extending from the bottom of the countershaft pulley upward over the top idler, thence horizontally over the mandrel pulley, back horizontally over the top of the lower idler, and then around the large pulley to the place of beginning. The operator's table was from twelve to fifteen feet long, located north and south, and was about sixteen inches wide, and its top was about three and a half feet above the floor. Extending through and across the top of this table was an opening half an inch wide, through which the top of the saw passed when cutting boards. The machine was located west of the table. The framework in which the saw was fixed was about six inches lower than the top of the table, and moved east and west about eighteen inches, in practically a horizontal plane, the movement being controlled by the operator's lever. When cutting lumber the saw came to the east edge of the table, and when not cutting, it was just west thereof. There was a sheet-iron hood, fastened to the top of the table, which was designed to protect the operator, when sawing, from flying sawdust. This hood extended seven or eight inches beyond the west side of the table. When the saw was farthest east,...