Angola Railway and Power v. Butz

• Decision Date: 06 June 1912
• Docket Number: 7,618
• Citation: 98 N.E. 818,52 Ind.App. 420
• Parties: ANGOLA RAILWAY AND POWER COMPANY v. BUTZ, ADMINISTRATRIX
• Court: Indiana Appellate Court

98 N.E. 818

52 Ind.App. 420

ANGOLA RAILWAY AND POWER COMPANY v. BUTZ, ADMINISTRATRIX

No. 7,618

Court of Appeals of Indiana

June 6, 1912

Rehearing denied December 18, 1912. Transfer denied February 13, 1913.

From Steuben Circuit Court; E. A. Bratton, Judge.

Action by Della Butz, administratrix of the estate of William H Butz, deceased, against the Angola Railway and Power Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Elmer E. Stevenson and Leonard, Rose & Zollars, for appellant.

Brown & Carlin and Powers & Yeagley for appellee.

OPINION

FELT, J.

This was an action by appellee, as administratrix of the estate of William H. Butz, deceased, against appellant, to recover damages for personal injuries resulting in the death of said Butz. The cause was tried by a jury which returned a verdict in favor of appellee in the sum of $ 4,000, together with answers to interrogatories. Appellant's motions for judgment on the answers to the interrogatories and for a new trial were overruled and this appeal taken.

The first error relied on for reversal is that the trial court erred in overruling appellant's demurrers to the complaint. The complaint is in one paragraph, and, after showing appellee's right to maintain the action, charges that appellant "is a corporation duly organized under the laws of the State of Indiana, and is the owner and operator of a plant for the furnishing of electric light and water to the city of Angola; * * * that the machinery in said plant consists of boilers for the generation of steam, two engines, dynamos, pumps, shafts, belting, etc.; that a shaft runs through the building in which said plant is located, which shaft is used in transmitting power and motion to the machinery in said plant." The complaint then shows the construction of a certain pulley in said plant and the usual method of adjusting the same by means of certain screws, and then alleges "that on the 9th of January, 1909, the deceased, William H. Butz, was and for fourteen years prior thereto had been engineer in said plant and it was a part of his duty as such engineer to adjust said belt by raising or lowering said pulley according as it was desired to loosen or tighten the same; that on said day while attempting to adjust said belt by turning down said screws and thereby tightening said belt and while standing on the west side of said belt and in close proximity thereto, as he was compelled to do in order to reach said screws, and while engaged in the discharge of his duties as such engineer and without any fault or negligence on his part and in consequence of the negligence of said defendant in not guarding said belt and machinery, the arm of said William H. Butz was caught by said belt and carried under said pulley and his body was thereby drawn between said post and said pulley or wheel and so jammed, bruised and crushed that he was instantly killed; that at the time the deceased was killed as aforesaid he was in the employment of the defendant as engineer in said plant and had been continuously in such employment for five years or more; that said belt at the time said deceased was killed, as aforesaid, was and for a long time immediately prior thereto had been wholly unguarded; that said belt, at the time of said killing, and during all of the time it remained unguarded as aforesaid was very dangerous; that said belt could have been guarded without rendering the same useless for the purpose for which it was used and intended, to wit: the transmission of power and motion from said engine to said shaft, and without in any way interfering with the efficiency of said belt or of said machinery."

Counsel for appellant first contend that the complaint is insufficient for the reason that it does not show that at the time of the injury to appellee's decedent, appellant was engaged in the generation or manufacture of anything, and for the further reason that appellant's plant is not of such a character as to come within the statute requiring machinery to be guarded.

The complaint does not directly state that appellant was engaged in the generation of electricity, but that it "furnished" electricity to various customers, and that as a part of the machinery in said plant it had boilers, dynamos and two engines. A dynamo has been defined to be a machine for generating or converting mechanical energy into electricity. Thomson-Houston Electric Co. v. Western Electric Co. (1895), 65 F. 615; Standard Dict. (20th Century ed.) 567; Webster's New International Dict. 689; 3 Century Dict. and Cyc. 1867; 8 Ency. Britannica (11th ed.) 764. Courts will take judicial notice of such matters of common knowledge and science as are known to all men of ordinary understanding and intelligence. Eureka Vinegar Co. v. Gazette Printing Co. (1888), 35 F. 570; Brown v. Piper (1875), 91 U.S. 37, 42, 23 L.Ed. 200.

In the case of City of Crawfordsville v. Braden (1892), 130 Ind. 149, 158, 28 N.E. 849, 14 L. R. A. 268, 30 Am. St. 214, it is stated that courts will not take judicial notice of the various methods of generating and transmitting electricity, but this statement is not inconsistent with the proposition that courts may know judicially that a dynamo is used for generating electricity and not merely for transmitting or storing the same. From the averments of the complaint, the reasonable and necessary inference to be drawn is that at the time of the alleged injury appellant owned and operated the plant, where decedent was employed, for the purpose of generating electricity as well as furnishing the same to its patrons. Indianapolis St. R. Co. v. Ray (1906), 167 Ind. 236, 241, 78 N.E. 978.

The authorities are not in harmony as to whether a plant for the generation of electricity is a manufacturing establishment, but the better reason and the spirit of our statute require that it be so classified. §§ 8021, 8029 Burns 1908, Acts 1899 p. 231, §§ 1, 9; Hoffmeyer v. State (1906), 37 Ind.App. 526, 531, 77 N.E. 372; Burke v. Mead (1902), 159 Ind. 252, 260, 64 N.E. 880; Wells v. Christian (1906), 165 Ind. 662, 76 N.E. 518; People, ex rel., v. Wemple (1892), 129 N.Y. 543, 29 N.E. 808, 14 L. R. A. 708; People, ex rel., v. Campbell (1895), 88 Hun 527, 34 N.Y.S. 711; Bates Mach. Co. v. Trenton, etc., R. Co. (1904), 70 N.J.L. 684, 58 A. 935, 103 Am. St. 811; Beggs v. Edison Electric, etc., Co. (1891), 96 Ala. 295, 11 So. 381, 38 Am. St. 94; Lamborn v. Bell (1893), 18 Colo. 346, 32 P. 989, 20 L. R. A. 241.

Appellant next urges that the complaint is insufficient for the reason that it does not charge that appellant negligently failed to guard the belt. The complaint alleges appellant's omission, in violation of statute, to guard a dangerous belt. This was a sufficient charge of negligence, since a failure by the owner of a manufacturing establishment to discharge a duty specifically imposed on him by statute is negligence per se. Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 420, 73 N.E. 899; Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149, 152, 64 N.E. 610, 58 L. R. A. 944; Indiana Mfg. Co. v. Wells (1903), 31 Ind.App. 460, 462, 68 N.E. 319; Buehner Chair Co. v. Feulner (1902), 28 Ind.App. 479, 483, 63 N.E. 239.

The doctrine of assumed risk, contended for by appellant, has no application when the death, or injury, of an employe is caused by a failure on the part of his employer to safeguard machinery, as required by statute. Jenney Electric Mfg. Co. v. Flannery (1913), 53 Ind.App. 397, 98 N.E. 424; American Car, etc., Co. v. Clark (1904), 32 Ind.App. 644, 648, 70 N.E. 828; Chamberlain v. Waymire (1904), 32 Ind.App. 442, 447, 68 N.E. 306, 70 N.E. 81.

Appellant also contends that the allegation that "it was a part of his [decedent's] duty as such engineer to adjust said belt" is a conclusion, and that the complaint is therefore insufficient for failure to show that decedent's employment required him to come in close contact with the unguarded belt.

"There are instances where the word 'duty' may be used in a pleading to designate the character of work to be done, or act to be performed, in pursuance of an employment, and when so used the allegation is one of ultimate fact, and not subject to the criticism that it states only a conclusion of the pleader. There is, however, a clear distinction between such use of the word 'duty' and its use in a general statement charging that it is the duty of a person to do, or to refrain from doing, a certain act or thing, intending thereby to charge that by reason of contractual relations, or by implication of law, such person is obligated to do or not to do the particular thing averred. In the latter case the weight of authority is decidedly to the effect that such averments state conclusions of law and not facts. But the use of the word 'duty' in the case at bar clearly comes within the former class, and is employed in the sense of work or labor." Chicago, etc., R. Co. v. Hamerick (1912), 50 Ind.App. 425, 434, 96 N.E. 649, and cases cited. The trial court did not err in overruling the demurrer to the complaint.

With the general verdict the jury returned answers to 265 interrogatories, which describe in detail the construction and operation of appellant's plant and machinery, and find the facts leading up to and attending the accident to appellee's decedent. The answers show, in substance, that at the time of his death, said William H. Butz was the chief engineer and machinist in appellant's plant, and had occupied that position in the same plant for many years; that he was in charge of the engines, boilers and other machinery in the plant and was authorized to make needed...