Buehner Chair Co. v. Feulner
| Decision Date | 12 March 1902 |
| Docket Number | 3,557 |
| Citation | 63 N.E. 239,28 Ind.App. 479 |
| Parties | BUEHNER CHAIR COMPANY v. FEULNER, BY NEXT FRIEND |
| Court | Indiana Appellate Court |
From Warrick Circuit Court; E. M. Swan, Judge.
Action by Henry Feulner, by next friend, against the Buehner Chair Company for personal injuries. From a judgment for plaintiff defendant appeals.
Reversed.
J. E Iglehart, E. Taylor and A. J. Clark, for appellant.
C. B Harris, O. J. Van Pelt, F. E. Monfort and G. V. Menzies, for appellee.
Action for personal injuries, in which appellee, plaintiff below, recovered judgment for $ 2,500. The cause was commenced and put at issue in the Vanderburgh Superior Court and upon change of venue was tried in the Warrick Circuit Court. The errors assigned are: (1) That the court erred in overruling appellant's motion to make the amended complaint more specific; (2) in overruling the demurrer to the amended complaint; (3) in refusing to peremptorily instruct the jury to return a verdict for the defendant; (4) in overruling appellant's motion for a new trial.
The amended complaint, in substance, charged that appellee, Henry Feulner, on May 6, 1899, was employed by appellant, in its factory, to operate a boring machine, and that in so doing he was injured by having his left arm caught, torn, and injured by said boring machine; that the boring machine was defective and unsafe, in that the spring supporting it was worn out, weak, and broken, whereby said bit was permitted to drop and fall from its proper position, causing the dangers incurred in operating said machine to be greatly increased, which condition was known to appellant and unknown to said Henry Feulner; that Henry was but fourteen years of age, of which appellant had knowledge, notwithstanding which he was employed and permitted to operate the dangerous machine without instruction or warning as to the manner of its use, or the dangers incident thereto. It was an upright boring machine, the shaft of which, to which was attached the bit, was raised and lowered by a foot lever; and that by reason of the weak condition of the spring supporting the shaft it was not held in proper position, and, when the foot of the operator was taken off the lever, the shaft would bob up and down, making it dangerous to operate, which appellant knew; the shaft was attached to a pulley around which was a belt operating the shaft at a high and dangerous speed; the bit was fastened into the lower end of a journal in the shaft by a setscrew, the bit extending below the journal its full length; there was no guard or protection for said shaft, journal, bit, and setscrew, as provided by the laws of the State of Indiana; and that at the date of the injury they were wholly unguarded and unprotected, which could have been done at small cost, without in any way interfering with the operation of said machine.
The prime cause of the injuries is alleged to have been on account of negligence and carelessness in permitting the defective, weak, and worn-out machine to be used at all; also in appellant employing and permitting Henry to operate the machine in the condition charged, without instructing him as to the proper use thereof, and in not warning him of the dangers incident thereto; also by the negligent and careless failure of appellant to comply with the laws of the State of Indiana, in that it did not have the shafting, journal, setscrew, and bit in said boring machine properly protected and guarded. It is alleged that Henry Feulner was without fault or negligence on his part.
The motion to make the complaint more specific asked that it be made to show in what respect the machine should be guarded or protected, the manner of the guarding, the kind of guard, and the manner of placing the guard. The complaint gives a complete description of the machine, among other things showing that the setscrew and boring bit, when the foot of the operator was off the lever, extended down from the other parts of the machine and was wholly exposed and unguarded. It further alleges that a guard could have been placed around these parts without interfering with the operating of the machine. It avers that they were wholly unguarded, in violation of the statute law of the State. This was a sufficient compliance with the statute. § 341 Burns 1901, § 338 Horner 1901. "The complaint shall contain: * * * Second, A statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended." The averment that the machine was unsafe, and was without any protection, in violation of the statute, was sufficiently specific, and it was not error to overrule the motion.
The demurrer to the complaint was for want of facts to constitute a cause of action. We have substantially set out its averments. Does the complaint show negligence upon the part of appellant? It alleges a failure in violation of a statute to guard a dangerous machine. Section 9 of an act concerning labor approved March 4, 1899, Acts 1899, p. 231, makes it the duty of owners of manufacturing establishments to protect the machines operated therein. "All vats, pans, saws, planers, cogs, gearing, belting, shafting, setscrews and machinery of every description therein shall be properly guarded," etc. The complaint thus charges the omission of a statutory duty, which, without reference to any other averment, is a sufficient charge of negligence.
Appellee's right to recover is based upon three distinct grounds, viz.: (1) Negligence in permitting a defective machine to be used; (2) negligence in failure to instruct appellee as to the danger thereof; (3) negligence in failing to have the machine guarded.
Counsel for appellant insist that there is no negligence charged by reason of not instructing the employe, because no necessity for such instruction is shown, and that the law of Indiana did not require the particular machine involved in this case to be guarded; that all three of the causes of action must be properly set out, and, unless this is done, the complaint is bad. This position is not tenable. "A plaintiff may allege more facts than are essential to constitute a cause of action, and in such case it is ordinarily held that he need only prove the substance of so many of them as constitute a cause of action to entitle him to recover, and the balance of them may be regarded as immaterial and surplusage." Terre Haute, etc., R. Co. v. McCorkle, 140 Ind. 613, 623, 40 N.E. 62, citing Long v. Doxey, 50 Ind. 385. It is stated in the case just cited: If we apply this rule to pleading as well as to the evidence, it will not make the complaint bad because the complaint sets out three distinct causes of action.
At the time of the injury and of the bringing of this action, under the statute, it was not necessary to allege a want of contributory negligence upon the part of appellee; yet, following the allegations of injury and the causes thereof, it is averred that the injury complained of was caused without fault or negligence on his part. Were an averment of want of contributory negligence necessary, this would be sufficient. It is alleged that the unsafe condition of the machine was known to appellant and unknown to appellee. This was a sufficient allegation to rebut actual knowledge and to repel imputed knowledge. Evansville, etc., R. Co. v. Duel, 134 Ind. 156, 33 N.E. 355, and cases cited.
It is also urged against the complaint that the allegations show that the appellee was in the full possession of his faculties, and with a full understanding of the alleged dangerous nature of the machine he assumed the risk incident to its operation. He certainly knew it was without guards. If the action were based solely upon the...
To continue reading
Request your trial