Chicago & Bloomington Stone Co. v. Nelson

• Decision Date: 29 January 1904
• Citation: 69 N.E. 705,32 Ind.App. 355
• Parties: CHICAGO & BLOOMINGTON STONE CO. v. NELSON.
• Court: Indiana Appellate Court

32 Ind.App. 355

69 N.E. 705

CHICAGO & BLOOMINGTON STONE CO.

v.NELSON.

Appellate Court of Indiana, Division No. 2.

Jan. 29, 1904.

Appeal from Circuit Court, Owen County; M. H. Parks, Judge.

Action by Parlie Nelson against the Chicago & Bloomington Stone Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Duncan & Batman and Willis Hickam, for appellant. Henley & Wilson and Seymour Riddle, for appellee.

WILEY, P. J.

Action by appellee against appellant for the negligent killing of appellee's minor son. Appellant filed a plea in abatement, which on appellee's motion was stricken out. The plea in abatement, motion to strike out, and the ruling of the court thereon, are brought into the record by the bill of exceptions. Answer in denial, trial by the jury, verdict and judgment for appellee. With the general verdict the jury returned answers to interrogatories, and appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict was overruled. Appellant also moved for a new trial, and this motion was overruled. A demurrer to the amended complaint was also overruled, and all of these adverse rulings are assigned as errors.

James Nelson, the husband of appellee, was made a party defendant-service upon him by publication-and he was defaulted. The complaint, which is in one paragraph, avers that appellant was engaged in quarrying, mining, and manufacturing and selling stone; that plaintiff was the wife of James Nelson, who had abandoned his family, and for two years had failed to contribute to their support; that on the 25th day of August, 1899, appellee's oldest son, Pleasant, was in the employment of appellant, and had been in such employment prior thereto as water boy (engaged in carrying water for other employés to drink); that on that day he was 14 years of age, and that all of the wages he earned by his employment to appellant were turned over to appellee, to assist in the support of her family, and that her said son was the principal support and the only source of income to her; that, in operating its quarries, appellant had a large amount of machinery, including derricks, steam power, masts, booms, chains, hooks, etc.; that, attached to the mast, near the bottom, was a large and heavy piece of timber, commonly called a “derrick boom,” which extends out 30 or 40 feet, and which is so constituted that the end farthest from the mast, by force of steam power, may be raised and lowered, turned to the right or left, at the direction of the manager of the derrick; that on the end farthest from the mast are fastened heavy chains, with hooks, which hooks are commonly called “dogs”; that in all properly constituted derricks said dogs are sharp on the end, and so arranged that, when loaded, the points of the hooks clinch the load thus upon them by the natural weight of the load and arrangement of the hooks; that said derricks, as so arranged, are used for the purrose of moving stone in and about the yards, but in the yards of appellant at said time the power house was so arranged that the employés of the power house were not in view of the employés at the derrick; that at that time and place appellant had a large number of men at work, some of whom were engaged at the power house, and some at the derricks, and that it was necessary, in order that those in the power house should know when to apply power, that an employé should be stationed between the derrick and the power house to give the signal from the derrick yard to the power house for the application of the power, or the withdrawal of the power, at the will of the derrick boss; that said signal was always given at the command of, and under the direction of, the derrick boss, who first made a signal to the signal boy, when the latter was to repeat it to the power house; that appellant, being in need of a signal boy, changed the work of appellee's son from water boy to signal boy; that the position of signal boy in a stone quarry is much more dangerous than that of water boy, but that said fact was unknown to appellee's son, and was well known to appellant; that on August 25, 1899, appellee's son was in the line of his duty, and stationed upon one of the signal stations of appellant, and, while so stationed, appellant, through its carelessness and negligence, moved one of the derrick booms of its quarry in such a manner as to set the dogs on and hold of a large, heavy stone in the derrick yards, and, instead of lifting said stone from the ground, in order to move it, as was the proper way of moving stones, carelessly and negligently dragged said stone upon the ground, and, before attempting to drag the same, had negligently and carelessly taken hold of said stone with said dogs; that, in the proper manner of moving stones with said derrick, holes are cut in the opposite sides of the stones, in which to place the points of the dogs; that, in the stone being moved, the holes were improperly and carelessly made, and did not give sufficient hold to the dogs, and that, as appellant proceeded to drag the stone on the ground, it was pulled against another large stone, which made it impossible to be pulled farther by the hold had upon it with the dogs, but that appellant continued, carelessly and negligently, to pull upon the stone until the dogs slipped from their hold, and flew with great force through the air toward the signal station upon which appellee's son was standing, and, without warning, or without giving him an opportunity to change his position, struck him and threw him violently to the ground, upon stones, and so injuring him that he died two hours thereafter; that at appellant's quarries, where said boy was working, there were two large derricks, and that a signal boy was employed for each derrick; that the derrick which killed appellee's son was a different one from the one for which he was acting as signal boy, and one with which he had no connection whatever; that each derrick had a separate crew of men, and a separate manager, known as “derrick boss”; and that said derricks were so located that each was in reach...