American Strawboard Company v. Foust
| Decision Date | 27 February 1895 |
| Docket Number | 1,411 |
| Citation | 39 N.E. 891,12 Ind.App. 421 |
| Parties | AMERICAN STRAWBOARD COMPANY v. FOUST |
| Court | Indiana Appellate Court |
Petition for rehearing overruled Apr. 30, 1895
From the Hamilton Circuit Court.
Judgment affirmed.
I. W Christian and W. S. Christian, for appellant.
W Fertig, H. J. Alexander, G. Shirts and I. A. Kilbourne, for appellee.
This is an action for damages for a personal injury received by the appellee while in the employment of the appellant.
The complaint avers, in substance, that the defendant, a corporation, at the times hereinafter mentioned, was engaged in the business of manufacturing strawboard at its factory near Noblesville; that the plaintiff was twenty-one years old in July, 1893; that in September of the same year he came to Noblesville, from Missouri to find employment; that he was employed by the defendant company about three weeks after he came to Noblesville, to work at the cutting machine, and to deliver the finished board therefrom, thence to be carried away and stored by other employes (a position in which there was comparatively no danger, said place where he was employed to work being at the end of a long series of heavy rollers or dryers, through which the material for the making of such strawboard passed); that the plaintiff was an inexperienced boy, and had never worked in any paper mill prior to his employment in said mill, of which defendant had full knowledge at the time, nor had the plaintiff ever been engaged in work about any kind of machinery prior thereto, of which the defendant also had knowledge at the time; that on the day of November, 1893, the plaintiff was engaged under such contract with the defendant in his said work at said cutting machine, when, about 5 o'clock in the morning, the unfinished paper that was passing over said series of rollers or dryers, in some manner unknown to the plaintiff, became broken, the point at which such break occurred being back among said rollers or dryers, and fifteen or twenty feet away from the position thus assigned to the plaintiff for his said work, and in a dangerous place; that each of said rollers or dryers (one rolling upon the other, weighing about one ton and composed of steel) was hollow and heated with steam supplied from the boilers of said machinery, to the end that said product in passing thereon should become dry and rolled into strawboards; that upon the happening of said break there was much commotion among the employes connected with that part of the work, confusion in the factory room, and running to and fro, and the foreman of said factory and of said room then directed the plaintiff to go back to said point and help fix the paper where it was broken so that it would pass through said series of rollers, as before, in an unbroken line, said foreman then claiming that such was the plaintiff's duty; that such service had never been performed by the plaintiff prior to that time, nor did he have any knowledge whatever, as to the manner of the performance thereof, nor the dangers attending the same, all of which the said foreman and the defendant then and there well knew; and the defendant or any of its employes did not give to the plaintiff any instructions whatever, either as to the method of performing such services, or as to the dangers attending the same, but, on the contrary, negligently and carelessly failed to do so; and, in the hurry of the moment and amid such confusion, and without any time for reflection or deliberation, either as to whether such work was within the line of plaintiff's duty or the method of doing the same, and having been at work the whole of the night, obeying said instructions, the plaintiff went among the said rollers and machinery, and into said dangerous place, and attempted to repair the break in said paper, and in so doing, without any fault or negligence on his part, but through the fault and carelessness of the defendant, the hand and arm of the plaintiff were caught in said broken pieces of paper and carried into and between said rollers or dryers, heated with steam as aforesaid, whereby his left arm was badly burned, lacerated and bruised, etc.
The complaint concludes with a description of the injury and the damages sustained, and asks judgment for $ 10,000.
The appellant answered with the general denial. The cause was tried by a jury, who returned a verdict in favor of the appellee for $ 2,500.
With the general verdict, the jury also returned answers to certain interrogatories submitted to them.
The appellant moved for judgment in its favor on the answers to the interrogatories, notwithstanding the general verdict, which motion was overruled.
The appellant also moved for a new trial, which motion was likewise overruled.
The overruling of these motions is the only specification of error assigned.
In support of the first specification of error, it is contended that answers to the interrogatories returned by the jury establish the following facts: That appellee was, at the time of his injury, twenty-one years of age, in full possession of his senses and a person of ordinary intelligence; that the dangers, perils, and hazards of his services were open and apparent; that he had been frequently warned of the danger of passing the paper up between the dryers; that just prior to his injury he was warned to be careful and look out for his hands; that his injury was caused by letting his hand follow the paper which he was passing up between the dryers.
It is urged that these facts establish negligence on the part of the appellee, in not using his senses and in not heeding the warnings given him, and in letting his hand follow the paper which he was passing up between the dryers.
The several interrogatories and answers propounded to and returned by the jury were as follows:
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