American Tin Plate Co. v. Williams

• Decision Date: 19 November 1902
• Citation: 30 Ind.App. 46,65 N.E. 304
• Parties: AMERICAN TIN PLATE CO. v. WILLIAMS.
• Court: Indiana Appellate Court

30 Ind.App. 46

65 N.E. 304

AMERICAN TIN PLATE CO.

v.WILLIAMS.

Appellate Court of Indiana, Division No. 1.

Nov. 19, 1902.

Appeal from superior court, Madison county; H. C. Ryan, Judge.

Action by David A. Williams against the American Tin Plate Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.Greenlee & Call, Blacklidge, Shirley & Wolf, and F. Winter, for appellant. Chipman, Keltner & Hendee, for appellee.

BLACK, J.

The appellee recovered judgment against the appellant for a personal injury suffered by him while in its employment in the capacity of weighmaster, the injury having been caused by the upturning or dumping upon him of a quantity of heated steel bars from a car in which they were transferred from one department to another of the appellant's tin plate factory. The car was one of a number which ran upon an iron tramway, extending north and south, and the steel bars were carried in a V-shaped box or basket, made of boiler iron. The car was supplied with apparatus by which the basket might be dumped, so as to unload the steel bars at the side of the track. This apparatus consisted of a ratchet wheel or cogwheel attached to a shaft which was connected to the top of the basket by means of chains on either side, and the shaft was provided with a wheel or crank whereby the shaft was to be operated in dumping. On either side of the ratchet wheel, and bolted to the adjacent framework, was a steel dog, which at one end turned loosely upon the bolt by which it was attached to the framework; the other end, or nose, being shaped and adjusted to fit between the teeth of the cogwheel, thereby to prevent the cogwheel and shaft from turning in the direction of the dog. On the night of December 15, 1897, the appellee, while on duty, was passing near the west side of the tramway, and opposite the loaded car, which another employé was attempting to dump toward the east side of the tramway. The car dumped toward the west, so as to throw the load upon the appellee. It was alleged in the complaint “that the ratchet wheel of said car was too small, slight, and insufficient therefor, and was not strong enough to control said car, and the defendant had allowed and permitted the said ratchet wheel, car, and appliances thereto, to become and remain out of repair for a long time; and the defendant, by the exercise of ordinary care, could have known and did know that said ratchet wheel, car, and appliances thereto, were too small, slight, and weak, and insufficient and defective and out of repair, so that the defendant's employé in charge thereof could not control the same,” etc. No question is made here upon the pleadings. With the general verdict in favor of the appellee, the jury returned special findings in answer to interrogatories proposed by the appellant; and it is contended on behalf of the appellant that the court erred in overruling its motion for judgment in its favor on the interrogatories, and the answers of the jury thereto, notwithstanding the general verdict.

As shown by the answers to interrogatories, the appellee, when injured, had been in the employ of the appellant for about three months, and had been engaged in the particular service in which he was injured, about four shifts. This service required him to be frequently about the dump car which caused his injury. This car had been in use about one month prior to the appellee's injury. The accident occurred in the nighttime. There were two electric arc lamps, such as are usually employed for street lighting, burning on the west side of the hot mills when he was injured; and the accident occurred near the west side of the hot mills, about midway between the electric lights, which were 120 to 150 feet apart. The dump cars, including the one which caused the injury, were loaded at what is known as the “Bar Mill,” and thence were propelled by horse power over a tramway on the west side of the hot mills. The car was loaded automatically, and was hauled in the usual way to the hot mills. Appellant's employés engaged in the bar mill and the hot mills were working under the superintendence of the same superintendent, in charge of the factory; all engaged in preparing steel plates for the turning process afterward applied in the factory; the process in the hot mills immediately following that in the bar mill; the treatment in both these places being part of the process of manufacturing tin plate at appellant's factory. The load of steel bars by which appellee was injured was unevenly and unequally placed in the car, and was so adjusted as to throw the weight thereof largely on one side of the car, but not so as to render the car topheavy and unstable. The bulk of the weight was on the west side of the car as it stood on the track immediately before it was overturned, and the manner in which it was loaded rendered it more difficult to dump on the east side of the track than it would have been if the load had been evenly adjusted. One George Wilkins was engaged in dumping the car when the injury occurred; he being an employé of the appellant engaged in the ordinary duties of his service, in which he had been employed about 30 days, and he and the appellee having been engaged upon the same shift about four shifts or turns, their duties bringing them in frequent contact. The car in question was supplied with a wheel or crank by means of which it was ordinarily dumped, but Wilkins did not dump it by means thereof at the time of the injury. He was unable to dump the car to the east, at the time of the injury, by means of the wheel or crank, not because the car was overloaded on the west side, thereby causing a tendency to dump to the west, but by improper construction of the ratchet wheel and dogs. He attempted to dump the car by means of an iron bar applied to the wheel as a pry or lever, in applying which he inserted the point thereof under an iron shaft running longitudinally, and forming part of the car. By means of the lever so applied, he turned the dump toward the east a part of the distance necessary to cause the load to be discharged to the east, when the point of the lever slipped from the shaft, so as to permit the dump to swing back toward the west, in doing which it was caused to turn over and discharge the load on the west side of the track. The car would not have so dumped the load if the lever had not so slipped. In answer to the question, “If said car had been properly loaded, could said Wilkins have dumped the same to the east?” the jury answered: “Yes; if the appliance had been of the proper mechanism.” He could have dumped the car to the east, as it was loaded, if the appliance had been sufficient. The car at the time of the injury was standing immediately west of the entrance to the mill No. 12, to which position it had been drawn from the north, toward the south, by a horse hitched to it,-the horse being south of the car, and headed toward the south; but, before the car was dumped, the horse had been unhitched and taken to the north side of the car. One of the appellee's duties was to instruct the person operating the car at which particular mill they should dump their loads, and he had instructed the person operating this car to dump this load at mill No. 12, and he was dumping the load at that mill pursuant to such direction. The appellee was going from the south toward the north, and had approached to within 10 or 12 feet of the car, when he first observed it, and he knew that it was to be dumped where it was standing when he first observed it. He had means of knowing which way the person operating the car intended to dump it, the means being by custom and instructions to dump nearest the hot mills. When he approached the car he did not see the person who was dumping it. Being asked if the appellee stopped, before he undertook to pass the car, to ascertain what was being done in relation thereto, the jury answered that he halted for an instant. The appellee and Wilkins were both engaged in the service of the appellant, under the superintendence of its foreman,John O'Brien, at the time of the injury. The appellee, before he was injured, did not make his presence on the west side of the track known to Wilkins, who, just before the car was dumped, for the purpose of warning other employés that he was about to dump the car, cried, “Look out!” That was the signal usually given in such cases. Immediately before the appellee was injured, the employés of the appellant were engaged in carrying bars from the pile on the east side of the car to the hot mills. The mechanism which controlled the dumping of the car was not concealed, and there was nothing to conceal it from the ordinary observation of those who worked about the car. There was no evidence that the appellee, prior to his injury, ever observed the condition of the mechanism or device by which the car was dumped. The mechanism...