Cole Brothers v. Wood
| Decision Date | 29 March 1894 |
| Docket Number | 860 |
| Citation | 36 N.E. 1074,11 Ind.App. 37 |
| Parties | COLE BROTHERS v. WOOD |
| Court | Indiana Appellate Court |
Petition for a rehearing overruled Nov. 15, 1894.
From the Putnam Circuit Court.
Judgment affirmed at costs of appellant.
G. C Moore and M. A. Moore, for appellant.
H. H Mathias, S. A. Hays, J. J. Smiley and W. G. Neff, for appellee.
OPINION
The appellant is a corporation organized under the laws of the State of Iowa, and engaged in manufacturing pumps and lightning rods. In the year 1890 it owned and operated a large factory situate in the city of Greencastle, Indiana, and appellee was employed by, and was working for, it in its said factory. While so engaged at work, he sustained severe personal injuries. He brought this action to recover damages, alleging that such injuries resulted from the negligence of the appellant.
He stated his cause of action in two paragraphs of amended complaint. The appellant moved the court to require the appellee to make each paragraph more specific. This motion was overruled, and appellant then demurred separately to each paragraph. The demurrers were overruled, and appellant filed an answer in two paragraphs, the first being the general denial, and a demurrer was sustained to the second.
The cause was tried by a jury, which returned a special verdict. Appellant made a motion to require the jury to find specially certain additional facts. This motion being overruled, it then moved for judgment in its favor on the special verdict. This motion was overruled, and it then made a motion for a new trial. This last motion was also overruled, and the court then rendered judgment in favor of the appellee on the special verdict in the sum of $ 3,000. Appellant excepted to each one of these adverse rulings, and has assigned each of them as error in this court.
That part of the first paragraph of the complaint necessary to be considered in determining the correctness of the ruling on the motion to make more specific and the ruling on demurrer, is as follows:
"That he (appellee) was employed to work for the defendant (appellant) by one Richard W. Crawley, who was then and there, and was at the time of the happening of the grievances hereinafter complained of, the agent and the foreman of said defendant in operating said factory; that as such agent and foreman the said Crawley employed and kept the time of all the employes who worked in said factory, and assigned to each employe the work he was required to do, directed what work and how it should be done, and designated the place where each employe should work; that the said agent and foreman had general supervision over all the employes of the defendant in said factory, and full authority to discharge such as he deemed it necessary to discharge; that the plaintiff, after being so employed as aforesaid, was directed by said agent and foreman to take charge of, operate and manage a certain auger, run by machinery, used in said factory, for boring out wooden tubing for pumps; that said auger and machinery thereto attached was located on the ground floor and against the south wall of a room on the south side of one of the factory buildings of the defendant; that after said wooden tubing was bored, the plaintiff was directed by said agent and foreman to set them on end inclined to the north and to rest the upper ends thereof against a framework overhead, made for the purpose, and located about eight feet north of said auger, in said room; that on said 29th day of July, 1890, while the plaintiff was engaged in the discharge of the duties of his employment in operating said auger and boring out said wooden tubing, the said agent and foreman negligently and carelessly went in behind, and negligently and carelessly, at the same time, ordered, directed and procured another employe of defendant, who was then and there acting under the orders and directions of said foreman, to go in behind and on the north side of a number of pieces of said wooden tubing which had been placed on end against said framework as aforesaid, well knowing that plaintiff was busily engaged at his work at said auger, and without in any manner notifying the plaintiff of their presence, to perform some special service for the defendant in no manner connected with or pertaining to the work of the plaintiff, the exact character of which is to this plaintiff unknown, and in attempting to do said work so ordered by said foreman, by reason of the limited space in which they were attempting to do said work, they came in conduct with said pieces of wooden tubing, so placed on end as aforesaid, and thereby caused three of said pieces, each of which was four inches thick, four inches wide and ten feet long, to fall over upon and across the small of the back of the plaintiff, to his great injury; that at the time the said pieces of wooden tubing fell upon the plaintiff, as aforesaid, he was leaning over said auger as the nature of his work required him to do, with his back toward said pieces so set up as aforesaid, and was wholly ignorant of the fact that the said foreman and other employe were behind the same; that immediately north of the place where said pieces of wooden tubing were placed on end, as aforesaid, there was located certain machinery used by the defendant in said factory; that the space intervening between said machinery and said pieces of wooden tubing did not exceed two feet in width; that there was not sufficient room in said space to enable two persons to enter the same or perform work therein, without endangering the safety of employes or making the working place on the south side of said tubing unsafe, all of which was well known to said foreman, when he entered and directed said other employe to enter said space; that the said injury to the plaintiff was not caused by any fault or negligence on his part."
The second paragraph of the amended complaint is drawn upon the same theory as the first, and contains the same allegations with reference to the powers, duties and authority of Crawley, as agent and foreman of appellant, and gives the name of the employe who entered the space with Crawley as Jack Eller; that the said Eller, while performing said work, came in contact with said tubing and caused the same to fall.
The additional allegations which it contains, and which are important, are the following: "That for some time prior to the happening of the injury to the plaintiff, as aforesaid, the said Eller had been in the service of the defendant as an employe; that, as such employe, the said Eller had not been assigned any special work or place to work in said factory, but was employed at different kinds of work at different places in said factory from day to day, under the orders and directions of the said foreman, and had no working place in the vicinity of the plaintiff's said working place; that the said Eller was of careless and negligent habits, and did not exercise sufficient care and skill in the performance of the duties of his employment to make it probable that he would not cause injury to his coemployes; that by reason of the want of care and negligence of the said Eller, several of the employes of the defendant had been injured, of all which facts the defendant and the said foreman had full notice and knowledge of at the time of, and prior to, the injury to the plaintiff."
We have italicised parts of the first paragraphs above set out, for the purpose of calling special attention to them. It will be seen by an examination of the allegations, that Crawley had general supervision and control over all of the employes in the factory. He directed what work and how it should be done, and designated, the place where each employe should work. And it also appears that while the appellee was in the place, and engaged at the work assigned to him, Crawley, by his act and his command given to another employe, suddenly rendered appellee's working place unsafe and dangerous. Of this fact Crawley had full knowledge, and appellee had no knowledge. Appellee sustained injuries because of the unsafe condition of the place in which he was engaged at work. The act and command of Crawley are characterized as being negligent, and it is averred that the appellee was free from contributory fault. The theory of the complaint, as we construe it, is that the appellant failed in its duty to keep the appellee's working place reasonably safe. If Crawley were the master, and he and an employe should have been engaged in placing dynamite bombs near appellee's working place without appellee's knowledge, and an explosion should have occurred, resulting in injury to the appellee, the hypothetical case and the actual case would be analogous.
The general rule is, that it is the duty of the master to provide his servant with a reasonably safe place in which to work. This duty is one imposed by law, and the master must respond in damages to his servant, who, without fault, sustains injury by reason of its violation. This duty is a continuing one, and rests upon the master at all times while the relation of master and servant exists. The cause of action sought to be charged in each paragraph of the complaint, is negligence. This negligence lies in the violation of the appellant's duty in failing to keep appellee's working place reasonably safe. The difficulty which arises in this case, is to determine the relation existing between Crawley and the appellee at the time of the injury. If they were fellow-servants, then the appellant is not liable, and the complaint is insufficient. If they stood in the relation of master and servant, then the appellant may be liable, provided the complaint is sufficient in other respects. In an action by a servant...
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