Columbian Enameling & Stamping Co. v. O'Burke

• Decision Date: 27 March 1906
• Docket Number: No. 5,625.,5,625.
• Citation: 77 N.E. 409,37 Ind.App. 518
• Court: Indiana Appellate Court
• Parties: COLUMBIAN ENAMELING & STAMPING CO. v. O'BURKE.

37 Ind.App. 518

77 N.E. 409

COLUMBIAN ENAMELING & STAMPING CO.

v.O'BURKE.

No. 5,625.

Appellate Court of Indiana, Division No. 2.

March 27, 1906.

Appeal from Circuit Court, Clay County; P. O. Colliver, Judge.

Action by Charles O'Burke against the Columbian Enameling & Stamping Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Lamb, Beasley & Sawyer and S. M. McGregor, for appellant. J. O. Piety, A. W. Knight, and George A. Knight, for appellee.

WILEY, J.

Appellee, who was plaintiff below, recovered a judgment against appellant for personal injuries received while in its employment, alleged to have resulted from its negligence. The complaint was in a single paragraph, to which a demurrer was addressed and overruled. Answer in denial. Trial by jury, resulting in a general verdict for appellee. Appellant's motion for a new trial was overruled. At the conclusion of the evidence appellant moved the court to instruct the jury to return a verdict in its favor, and this motion was also overruled. Overruling the demurrer to the complaint and the motion for a new trial are assigned as errors.

The complaint charges that appellant was in the business of manufacturing enameled ware; that at and prior to the 24th of June, 1903, appellee was in appellant's employment “in and about the manufacture of its goods and wares”; that in the process of such manufacture the appellant immersed its goods in their unfinished state in certain dangerous acids contained in large tanks; that said tanks were supplied with acids from large bottles; that about the bottles were constructed a framework or crate, of wood; that the bottles containing the acid were conveyed to the tanks by means of trucks; that in loading the bottles upon the trucks it was necessary to take hold of the framework about the bottles, and by means thereof tip the bottles to one side, so as to permit the truck to pass under and receive them; that it was one of appellee's duties to aid his fellow workmen in holding bottles filled with acid in the loading of the bottles upon the trucks preparatory to their being transferred to the tanks; that on the date last named, while appellee was in the performance of his duties, and in the act of tipping one of said bottles filled with acid, so as to permit the truck to pass under and receive it, he had hold of the framework about it, and while so holding to the framework it broke and gave way, causing the bottle to tip backward and to throw out a large amount of acid, which struck appellee in the face and eye, by which he was severely injured; that the framework gave way because it was defective and insecure, and insufficient in strength to withstand the handling of the bottles; that the accident was occasioned because of the defective condition of said framework, without any fault on the part of appellee, and while he was exercising due care and caution. It is further charged that appellee had no knowledge or notice of the insecure condition of the framework about the bottle, and could not have ascertained the same by the exercise of ordinary care; that appellant had notice of the defective condition, or could have had by the exercise of ordinary care; and that appellee's injury was due to appellant's negligence as aforesaid. The objections urged to the complaint are (1)That it shows that the injury of which appellee complains was the result of a risk assumed by him; (2) that the general allegation in the complaint of want of knowledge on appellee's part of the defective and insecure condition of the crate is overcome by the specific allegations of the complaint showing knowledge on his part, or that he could have known by the exercise of ordinary care.

We do not think that either of these objections are well taken. The law is well settled that it is the duty of a master to exercise ordinary care and diligence in providing safe and suitable tools and appliances to servants who are engaged in his service, which will be safe for the servant to use in the discharge of his duties to his master, pursuant to the contract of employment. As was said by this court in the case of B. & O., etc., Ry. Co. v. Amos, 20 Ind. App. 378, 49 N. E. 854. “It is also the master's duty to exercise a reasonable supervision over such tools, and to exercise ordinary care to keep them in safe condition for the use of the servant. *** The master is required to take notice, not only of the deterioration of tools and appliances by continued use, but also of such deterioration by natural or ordinary decay, as may be discovered by reasonable inspection, in any material which may be provided by him as tools or as parts thereof. The servant has a right to rely upon the master's observance of these requirements and performance of these duties.” Island Coal Co. v. Risher, 13 Ind. App. 98, 40 N. E. 158;Salem, etc., Co. v. Griffin, 139 Ind. 141, 38 N. E. 411;Louisville, etc., Ry. Co. v. Hanning, 131 Ind. 528, 31 N. E. 187, 31 Am. St. Rep. 443. It has also been held that notice on the part of the master of defects in machinery or appliances, and want of notice on the part of the servant, may be alleged in general terms, and such allegation will include both actual and constructive knowledge. Louisville, etc., Ry. Co. v. Miller, 140 Ind. 685, 40 N. E. 116;New Kentucky Coal Co. v. Albani, 12 Ind. App. 497, 40 N. E. 702. It has been held that reasonable care on the part of the master demands inspection and search for latent defects, while reasonable care on the part of the servant requires attention and observation of open or obvious defects and perils. Louisville, etc., Ry. Co. v. Quinn, 14 Ind. App. 554, 43 N. E. 240.

An averment in a complaint that the servant did not know of such defect or danger is sufficient as a matter of pleading to rebut on reply, not only actual knowledge, but also implied or constructive knowledge or notice. B. & O., etc., R. Co. v. Roberts, 161 Ind. 7, 67 N. E. 530;Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235;Chicago, etc., Ry. Co. v. Richards, 28 Ind. App. 46, 61 N. E. 18. In the case of City of Wabash v. Carver, 129 Ind. 552, 29 N. E. 25, 13 L. R. A. 851, it was held that special allegations will not control general allegations of nonassumption of risk, unless it can be held as a matter of law that plaintiff assumed the risk. See, also, Cincinnati, etc., R. R. Co. v. Darling, 130 Ind. 376, 30 N. E. 416; Salem Stone Co. v. Griffin, supra. We think it may be stated as a general rule that a servant may rely upon the safety of such implements as are provided by the master for his use in the master's service, unless their defectiveness is open to the observation of an ordinarily prudent man. B. & O., etc., Ry. Co. v. Amos, supra; Arcade File Works v. Juteau, 15 Ind. App. 460, 40 N. E. 818, 44 N. E. 326. A servant engaged in his master's service has a right to presume that his employer has done his duty and furnished appliances which render the work reasonably safe. Indiana, etc., Ry. Co. v. Bundy, 152 Ind. 590, 53 N. E. 175;Brazil Block Coal Co. v. Gibson, 160 Ind. 319, 66 N. E. 882, 98 Am. St. Rep. 281;Pittsburgh, etc., Ry. Co. v. Parrish, 28 Ind. App. 189, 62 N. E. 514, 91 Am. St. Rep. 120;Chicago, etc., Ry. Co. v. Lee, 29 Ind. App. 480, 64 N. E. 675. As a general rule it may be stated that an employé is not required to make inspection of the tools, appliances, etc., which his master has furnished him. The law does not place upon him that burden or responsibility. As far as the law...