Chamberlain v. Waymire

• Citation: 68 N.E. 306,32 Ind.App. 442
• Parties: CHAMBERLAIN et al. v. WAYMIRE.
• Decision Date: 13 October 1903
• Court: Indiana Appellate Court

32 Ind.App. 442

68 N.E. 306

CHAMBERLAIN et al.

v.WAYMIRE.^*

Appellate Court of Indiana, Division No. 1.

Oct. 13, 1903.

Appeal from Circuit Court, Miami County; J. F. Cox, Judge.

Action by Louisa Waymire, administratrix of the estate of William E. Waymire, deceased, against George R. Chamberlain and others. From a judgment for plaintiff, defendants appeal. Reversed.

Mitchell & McClintic and Nott N. Antrim, for appellants. Reasoner & O'Hara and Loveland & Loveland, for appellee.

HENLEY, J.

This was an action for damages, commenced by appellee against appellants, on account of the alleged death, by wrongful act of appellants, of appellee's husband, one William E. Waymire, and of whose estate appellee is the administratrix. The complaint, which the trial court held sufficient upon demurrer for want of sufficient facts, was in one paragraph. Appellants' answer was a general denial. There was a trial by jury, and a verdict and judgment in favor of appellee. The assignment of errors presents to the court for review the action of the trial court in overruling appellants' demurrer to the complaint, in overruling the motion for judgment upon the answers to the interrogatories returned by the jury with the general verdict, and in overruling the motion for a new trial.

The substantial averments of the complaint are that appellants are partners engaged in the manufacture of baskets; that a part of the work of making baskets consists of stripping logs of their bark after submerging them in a vat of boiling water, from which vat they are passed to a veneering machine; “that on the 18th day of August, 1898, the large vat so used as aforesaid consisted of a basin about six feet in depth, with the top projecting about six inches from the surface of the surrounding ground, and that upon said date the said defendants [appellants] wrongfully, carelessly, and in criminal violation of the statute of the state of Indiana, suffered and permitted said vat, while filled with boiling water, to be and remain open and exposed, without any railing or safeguard or protection surrounding the same, to serve as a warning or protection to their employés and others who came into the vicinity thereof in the course of their business and employment.” It is further averred that the said decedent was at the time of his death in the employ of appellants, and whole so employed was engaged, in the line of his duty, under such employment, in handling logs in the immediate vicinity of the vat of boiling water, and was using for such purpose a log hook, furnished by the appellants as a suitable and necessary tool for that purpose; that it was necessary that such tool, so furnished, should be firm, and should have a keen, sharp point, in order that the person using it could grasp the log firmly and move it with certainty and precision; that on the said date the appellants wrongfully, carelessly, and negligently put into the hands of decedent a log hook made of a round bar of iron, five-eighths of an inch in diameter, and curved at one end, with the end of the hook dressed to a point, but that said point had been by appellants negligently suffered to become and remain so blunt and dull that it would not grasp a log, but would slip when applied, and by reason of the lightness and weakness of the bar from which it was made, the hock would bend and straighten under the weight of the logs, in handling them; that while appellee was so employed in handling logs near the vat, and by reason of the defective log hock, the said hook slipped from a log being handled by him, and he was thrown into the vat of boiling water so negligently left open and unguarded, in consequence of which he lost his life.

If the complaint was drawn upon the theory that the decedent's death was the proximate result of the defective log hook, it would be insufficient, because it wholly fails to allege knowledge on the part of appellants, and the want of knowledge on the part of decedent, of the defects charged. Creamery Package Co. v. Hotsenpiller, 24 Ind. App. 122, 56 N. E. 250, and cases cited. We construe the complaint, however, upon the theory that the negligence relied upon to fix appellant's liability consisted of the violation of a positive statute, in failing to protect or guard the vat of boiling water. The pleader manifestly...