American Car & Foundry Co. v. Clark

• Decision Date: 05 April 1904
• Parties: AMERICAN CAR & FOUNDRY CO. v. CLARK.
• Court: Indiana Appellate Court

32 Ind.App. 644

70 N.E. 828

AMERICAN CAR & FOUNDRY CO.

v.CLARK.

Appellate Court of Indiana.

April 5, 1904.

Appeal from Circuit Court, Clark County; James K. Marsh, Judge.

Action by Volta F. Clark against the American Car & Foundry Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.M. Z. Stannard, for appellant. G. H. Voigt, for appellee.

ROBY, J.

Action by appellee. Verdict and judgment for $1,500. Complaint in three paragraphs. Verdict based on first and third. Separate demurrers thereto were overruled.

The facts set up in the first paragraph are substantially: That appellant is a manufacturer of cars at Clarksville, Clark county, Ind., and, in one of the departments of its plant, maintained and operated a machine called a “woodworker,” used to cut wood into desired shapes, and for that purpose supplied with knives attached to a shaft, which, when the machine was operated, revolved, bringing said knives in contact with wood placed on a table and run over said knives, which said machine should have been supplied with springs to hold said wood in proper position as it was run over said knives, but appellant, well knowing that said machine was not supplied with such springs, negligently failed to provide them. That on January 28, 1902, appellee was employed by appellant to operate a planing mill, at said plant, and, under his contract, he was not required to perform any other or different service. That he operated said planing machine under said employment, and while so employed, on the 1st day of February, 1902, was directed and required by appellant to temporarily leave said employment and operate said woodworker, and in obedience to such direction he did temporarily leave said employment and engage in the operation of the woodworker. While so engaged he placed a piece of wood on the table, and proceeded to run it over said knives for the purpose of cutting it into desired shape, and while so engaged he was, by the absence of such springs, required to hold such wood in position with his hands as it passed over said knives, and, while so holding it, the same was by the operation of the machine suddenly turned thereby, causing one of his hands to come in contact with said knives, cutting off part of two fingers. That said injury was caused by appellant's act in directing him to leave his regular employment and engage in the operation of the woodworker, and its negligent failure to supply said machine with springs, as aforesaid. That, had it been so supplied, he would not have been required to hold said wood in position with his hands as it passed over said knives, and would not have been injured. That the work he was doing was different from, and more hazardous than, that he was employed to do, and was done at another place than that of his regular employment. All of which appellant knew. Wherefore, etc. The third paragraph differs from the first in the charge of negligence. It is averred that there was danger in operating the machine, as appellant knew, and that a guard could have been placed thereon without interference with the proper operation of the machine, which would have prevented any injury from said danger, but appellant, well knowing that it had not been done, then and there, and in violation of the statute, negligently failed to provide said machine with such guard, it being then and there without such guard, by reason of which appellee was injured, etc.

The complaint is skillfully drawn, and the briefs filed in this court by both parties are model ones.

The first paragraph is not defective in failing to aver that it was practicable to provide the springs which it is averred should have been provided and were negligently not provided. The absence of springs is not averred to have been unknown to appellee, nor to have constituted a latent or unobservable defect. The risk would therefore be an assumed risk, except for the further allegation as to the temporary change of employment. The doctrine of the assumption of obvious risks does not apply where the employé is ordered to do work out of the line and away from the place of the work he is hired to do, and is so engaged when injured. Clark, etc., v. Wright, 16 Ind. App. 630, 45 N. E. 817. The first paragraph therefore stated a cause of action.

The act of 1899 makes it the duty of an owner of a manufacturing establishment to protect the machines operating therein. “All vats, pans, saws, planers, cogs, gearing, belting, shafting, set screws and machinery of every description shall be guarded.” Buehner v. Feulner (Ind. App.) 63 N. E. 240; Acts 1899, p. 231, c. 142 (Burns' Ann. St. 1901, § 7087i). The averments are that appellant negligently failed to perform the duty thus enjoined upon it, and are sufficient. The doctrine of assumed risk does not apply where the negligence counted upon is the violation of this positive and explicit statute. Monteith v. Kokomo (Ind. Sup.) 64 N. E. 610, 58 L. R. A. 944; Buehner v. Feulner, supra; Wortman v. Minnich, 28 Ind. App. 31, 62 N. E. 85;Davis Coal Co. v. Polland (Ind. Sup.) 62 N. E. 492, 92 Am. St. Rep. 319. In so far as Bodell v. Block Coal Co., 25 Ind. App. 654, 58 N. E. 856, holds otherwise, it has ceased to be authority. The facts averred do not include a description of the conduct of appellee at the time he was injured, and, in their absence, contributory negligence cannot be determined. It will not do to say that the mere fact that an employé works at a defective machine concludes the question of contributory negligence against him. The doctrine of assumed risk covers that phase. A man may be careful while working with a dangerous machine. “Assumption of risk is matter of contract. Contributory negligence is a question of conduct.” Davis Coal Co. v. Pollard, 158 Ind. 607, 619, 62 N. E. 492, 497, 92 Am. St. Rep. 319. The complaint was not subject to the objection that contributory negligence affirmatively appeared therefrom, and the demurrers were properly overruled.

Appellant filed an answer to the first paragraph of complaint, in two paragraphs: First, a general denial; second, that the danger by reason of which appellee was injured was open and obvious, and therefore an assumed risk. A demurrer to the second paragraph of answer was sustained, and Umback v. Lake Shore, etc., 83 Ind. 191, is relied upon in support of the error assigned therein. In that case a demurrer was overruled to an answer similar to the one under consideration. The plaintiff could not have been injured thereby. It is not necessary, under our decisions, that the defendant set up by answer that the risk on account of which the injury complained of occurred was an assumed one, in order that he receive the benefit of that fact, and it was not error to sustain a demurrer to the second paragraph of answer.

Appellant's motion for judgment on the answers to interrogatories was overruled. It asserts that such action was erroneous, for the reason that it is disclosed by such answers that appellee's employment was not limited as averred in the first paragraph of his complaint. Without setting out the interrogatories and answers relied upon, it is sufficient to say that, according to an answer to one interrogatory, he was, at the time he was injured, engaged in other work than that he was employed to perform. Conflicting answers to interrogatories are fatal to a motion for judgment notwithstanding the general verdict.

What has heretofore been said upon the subject of contributory negligence applies to the motion for judgment, as well as to the ruling on the demurrer to the complaint. The facts considered in Buehner Chair Co. v. Feulner, 28 Ind. App. 479, 63 N. E. 239, were not limited to the character of the machine, and the exposure of all its parts to the operator's view, but included a failure to look while he was operating it, and the placing of his arm or hand under the bit, by which he was injured, without any necessity for so doing. The court did not err in overruling the motion for judgment.

The ninth assignment of error is that the court erred in overruling appellant's motion for a new trial. The motion questions the sufficiency of the evidence to sustain the verdict, and the action of the court in giving and refusing specified instructions. The theory of the first paragraph of the complaint is that appellee was employed to operate a planer, and that he was required by appellants to temporarily leave his regular employment and engage in the operation of a woodworker; the latter being a more hazardous occupation than that which he had contracted to perform. The evidence of the appellee-and there is none in the record more favorable to himself, nor conflicting with it -is that he was employed in the cabinet department of appellant's shop by the foreman of that department, who told him they were going “to start to work nights,” and, if he wanted to, he could work, and that Mr. Walker would assign him. This conversation took place on Saturday, and on Monday he reported for work, and was told by the foreman to go to the new planer, which he did, working there eight or ten days. The night before he was injured, the night foreman said to him: “Clark, you run the woodworker. Dick Rouerk is off. He won't be here.” Appellee ran the latter machine that night and was injured the next night. He worked the second night until about 2:30 a. m. “I wanted to run another machine-a sticker-but that would leave the woodworker standing idle.” He had previous to the last employment worked at the planer three years, five or six feet distant from the woodworker, and was familiar with it. The evidence does not show that the appellee was employed to work at the planer. There was nothing in the contract relative to the machine at which he was to work. He was employed in the department, and might have been assigned by the foreman to the woodworker in the first instance, as he was in the last. The facts stated do not...