Blondin v. Oolitic Quarry Co.

• Decision Date: 06 June 1894
• Docket Number: 1,221
• Citation: 37 N.E. 812,11 Ind.App. 395
• Parties: BLONDIN v. OOLITIC QUARRY CO
• Court: Indiana Appellate Court

37 N.E. 812

11 Ind.App. 395

BLONDIN v. OOLITIC QUARRY CO

No. 1,221

Court of Appeals of Indiana

June 6, 1894

Petition for a rehearing overruled Dec. 14, 1894.

From the Owen Circuit Court.

Judgment reversed, with directions to the court below to render judgment in favor of the appellant for $ 1,000 and interest from the day of the trial and verdict.

J. W Williams, J. R. East and R. G. Miller, for appellant.

W. H H. Miller, F. Winter and J. B. Elam, for appellee.

OPINION

REINHARD, J.

The appellant sued the appellee for damages for a personal injury sustained by him while in the employment of the appellee as a stone dresser in the appellee's quarry. The questions presented arise upon the ruling of the court in rendering judgment in favor of the appellee and against the appellant upon the special verdict. It appears from the verdict that the appellee was operating a stone quarry where it was engaged in quarrying, dressing and shipping stone for the market. On the day of the injury the appellant was employed by the appellee for the specific purpose of dressing stone and preparing the same for shipment after it had been quarried and placed in the stone yard "on a solid and steady surface, secure and safe to work upon and about." On the 15th day of June, 1892, the appellant, while in the line of duty was drawing a line on a stone lying north and south in said yard, with his face to the east, and while thus engaged, another stone lying north and south and immediately west of the appellant, fell over eastward and upon appellant's left leg, breaking the same between the knee and ankle, from which the jury found that the appellant sustained damages in the sum of $ 1,000. The stone which fell upon and injured appellant was about ten feet long and from twenty to twenty-four inches wide and eight to nine inches thick. It had been placed in the yard by appellee by means of a derrick by direction of one Thomas Heaps, and had been set upon its side or edge so that it could be dressed, and was resting upon loose pieces of spawls and stone, without any props of wood or other supports, and in such manner as to allow it to settle down and turn over on its side suddenly; and by reason of not being thus propped and supported, it fell and injured the appellant, who had no knowledge of its unsafe condition, and had made no examination of the stone and how it was placed.

On the day of the injury, all the officers and proprietors of appellee's quarry were absent except Thomas Heaps, who had been left in charge of the quarry, ledge, machinery, and hands, with full power to control the workmen, the placing and moving of the stone, the arrangement of the stone for the cutters and dressers to work upon, and to set the same in a secure manner so that appellant and other stonecutters might dress the stone for shipment. At the time of the injury Heaps had exclusive control of the quarry and had full command of the men, with power to hire and discharge employes at the place where appellant was injured. The stone which fell on appellant had been sitting on its edge in the stone yard, in the unsafe condition in which it was when it fell, for two hours before the accident occurred, and could have been examined by Heaps, and its unsafe condition ascertained by him in ample time to have prevented the injury had he undertaken or made any effort to do so. It was the duty of the stonecutters, when they reached the stone to be dressed, to place spawls under such stone, and level it up, and to call other employes to help them, if necessary, in so doing, but the stone which fell upon the appellant had not been reached by him for the purpose of being dressed, nor by any other stonecutter. Appellant was required at other times to do ordinary labor about the quarry at less remuneration than he received for stonecutting, but at the time of the injury, his employment was exclusively that of dressing stone, and the duties connected therewith, as stated. Heaps had over him certain superior officers, but they were not present about the quarry on the day of the injury.

We think it was the duty of the appellee to furnish the appellant with a reasonably safe place in which to do his work, and the finding that appellee was to place the stone to be dressed on a solid and steady surface, secure and safe to work upon and about, shows that he had a right to assume that this had been done. It was not his duty therefore, to examine the stone about him to ascertain if they were all securely placed and free from danger of falling over while he was engaged in dressing other stone. It is true that the appellant assumed all ordinary risks incident to the employment, but we think the finding clearly shows that this was not one of the risks assumed. Nor is...