Clear Creek Stone Co. v. Carmichael

• Court: Indiana Appellate Court
• Writing for the Court: ROBY
• Citation: Clear Creek Stone Co. v. Carmichael, 37 Ind.App. 413, 73 N.E. 935 (Ind. App. 1905)
• Decision Date: 28 March 1905
• Docket Number: No. 4,732.,4,732.
• Parties: CLEAR CREEK STONE CO. v. CARMICHAEL.

37 Ind.App. 413

73 N.E. 935

CLEAR CREEK STONE CO.

v.CARMICHAEL.

No. 4,732.¹

Appellate Court of Indiana, Division No. 2.

March 28, 1905.

Appeal from Circuit Court, Brown County; W. J. Buckingham, Judge.

Action by Frank Carmichael, a minor, against the Clear Creek Stone Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Duncan & Batman and Anderson Percifield, for appellant. East & East, for appellee.

ROBY, J.

This suit was brought by Frank Carmichael, a minor, suing by his next friend, Bridget Carmichael. The Consolidated Stone Company and the appellant were made defendants. During the trial appellee dismissed as to the Consolidated Stone Company, proceeding to final judgment against appellant. The complaint was in one paragraph. The demurrer to it was overruled, and issue formed by general denial. With its verdict the jury returned answers to certain interrogatories. Appellant unsuccessfully moved for judgment thereon, and appeals from a judgment in accordance with the general verdict for $2,500. Errors assigned are based upon the overruling of the demurrer to the complaint, the motion for judgment notwithstanding the general verdict, and the motion for a new trial.

It is averred in the complaint that appellant was a corporation owning and operating a stone quarry and certain machinery, and having a large number of employés in its service, including said Frank Carmichael, who was performing the duties of “channeler runner”; that on the 13th day of September, 1900, and prior thereto, appellant had selected, appointed, and authorized one George Moore as derrick boss and foreman, and had given him full authority to control and manage the work in said quarry, the manner of its performance, and to give orders to different persons employed therein; that appellant's employés were subject to the orders and directions of said Moore, and were bound to and did conform to such orders at the time of the injuries complained of; that prior to said date appellant had channeled a large quantity of stone, and in so doing had left walls several feet high in said quarry running both north and south and east and west; that on said day it was necessary that the channeling machine on which Carmichael was employed be turned around from its then position north and south so that it would run east and west on the ledge in said quarry; that said machine weighed about eight tons, and that in turning it it was necessary to lift and turn it by means of a steam derrick, attaching large metal pieces called “bales” to the machine, and then putting the derrick in operation; that it was the duty of said Carmichael, in obedience to orders and directions of said Moore, to fasten the bales to the said machine, and when so fastened, and when he had removed himself to a place of safety away from said machine, to notify said Moore by a signal given with the hand, so that Moore could then order the power man to hoist and turn said machine; that said machine was standing north and south parallel with a high stone wall, about two feet therefrom; that a few feet from the north end thereof there was another wall running east and west, the space between it and the machine being occupied by blocks of stone, drills, and barrels; that in conformity to the orders and directions of said Moore said Carmichael attached said bales to said machine, they being fastened to the boom pole of the derrick, and thereupon, without waiting for any signal, and before Carmichael could escape from his position, said machine suddenly started upward and swung against and upon him, forcing him against the wall, and crushing and maiming him, inflicting permanent and serious injury; that at the time of said injury said Moore knew, or with reasonable diligence could have known, that the giving of said order to the power man to hoist said machine while said Carmichael was in the space between said machine and the wall would render the place dangerous and unsafe to him, and that said machine would, when hoisted, likely swing towards said wall, and catch and injure him; that it was dangerous to order said machine hoisted before appellee had notified him to do so, and before he had removed to a place of safety, but that with all of such knowledge, said Moore, in charge as aforesaid, and while appellee was in the line of his duty, obeying and conforming to the order and direction of said Moore, and without any signal from him or any one else, and before he had time to remove from his position, negligently ordered and directed the power man to hoist said machine; that the power man obeyed said order; that said machine was then and there...