American Car & Foundry Co. v. Fess

• Decision Date: 26 March 1913
• Docket Number: No. 7,668.,7,668.
• Court: Indiana Appellate Court
• Parties: AMERICAN CAR & FOUNDRY CO. v. FESS.

53 Ind.App. 136

101 N.E. 318

AMERICAN CAR & FOUNDRY CO.

v.FESS.

No. 7,668.

Appellate Court of Indiana, Division No. 2.

March 26, 1913.

Appeal from Circuit Court, Floyd County; Joseph H. Shea, Special Judge.

Action by Thomas L. Fess against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed.

M. Z. Stannard and Jonas G. Howard, both of Jeffersonville, for appellant. George H. Hester and Stotsenburg & Weathers, all of New Albany, for appellee.

LAIRY, J.

Appellee in this case recovered a judgment in the trial court for damages on account of personal injuries. The facts disclosed by the evidence show that appellee was employed by appellant to work in its car shops, and that, at the time of his injury, he was engaged with two fellow workmen in fastening rivets in the steel frame of a car which was in process of construction. It was the work of appellee to hold an iron bar, known as a “dolly,” against the heated rivet while it was hammered into place by another member of the gang, called a “riveter,” who used for that purpose an air gun or hand hammer. The third member of the gang was a boy, known as a pick-up boy, who heated the rivets and placed them in position. At the time the injury to appellee occurred, the riveter was using a hand hammer weighing about 2 1/2 pounds, with a handle about 22 inches in length. This hammer was loose upon the handle, and, while the riveter was using it, suddenly left the handle and struck the plaintiff, inflicting the injury of which he complains.

Appellant maintained a tool room in connection with its factory, where it kept on hand a supply of hammers, hammer handles, and such other tools and parts of tools as were required for use in the factory. It kept on duty in this tool room men whose business it was to repair tools which were returned as defective, and the employés in the factory were instructed to return all tools which became defective while in use to this tool room. When this was done, the tool was repaired or another furnished in its place.

The hammer which was in the hands of the riveter at the time the injury occurred had been furnished to him from the tool room about two or three weeks before, and had remained in his possession until the time of the accident. When not in use, it was placed in a tool box or locker, which was under the control of the men who worked in this gang. There is no evidence tending to show that the tool was defective at the...