Consol. Stone Co. v. Redmon

• Decision Date: 22 November 1899
• Citation: 55 N.E. 454,23 Ind.App. 319
• Parties: CONSOLIDATED STONE CO. v. REDMON.
• Court: Indiana Appellate Court

23 Ind.App. 319

55 N.E. 454

CONSOLIDATED STONE CO.

v.REDMON.

Appellate Court of Indiana.

Nov. 22, 1899.

Appeal from circuit court, Lawrence county; J. D. Alexander, Special Judge.

Action by Robert Redmon against the Consolidated Stone Company. From a judgment for plaintiff, defendant appeals. Reversed.

Moses F. Dunn, for appellant. John R. East and Thos. J. Brooks, for appellee.

WILEY, J.

Appellant is a corporation, and owns and operates a stone quarry. Appellee was an employé, and while so engaged was injured by appellant's alleged negligence. This action was to recover damages for such injury. The complaint is in five paragraphs, and each paragraph is voluminous. In the first paragraph it is averred that appellee was employed specially as a “wheeler,” whose duty it was to wheel stone, dirt, and rubbish, in stripping the same off of the ledges of stone; that in the discharge of the duties of his employment he was free from danger; that he received $1.25 per day; that in taking out stone appellant used what is known as a “channeler,” which was a heavy machine run by steam power; that, by means of drills working up and down, it cut grooves in stone to the depth of four or five feet; that the drills, weighing 600 pounds, were set in the machine by means of a chain and pulley at the top, and, to safely adjust such drills, it is necessary to elevate them by means of a crank, while another person goes on top of the machine, adjusts the chain on a pulley, and then by reversing the crank the drills are let down into the groove, and to do such work of adjusting on top of such machine requires the service of some one familiar with the running and adjusting of the different parts of the machinery; that appellant was wholly unacquainted with, and ignorant of, the manner of adjusting such drills on the top of said channeler, and did not know of the dangers incident thereto; that he was without experience in such matters, and had never had any opportunity of examining or seeing how such matters were done, nor in what place to put his hands to keep them free from danger; that he had never been instructed in such work; that he was wholly without experience, and that appellant knew said fact; that, while engaged in the work for which he was employed, he was “by the defendant, its agents and servants in charge of said quarry, ordered and directed to leave his said employment, and to go and work upon said channeling machine, and to obey the orders of the channeler in charge of such machine, but that in giving said order the defendant and its agents in charge of said quarry and machinery carelessly and negligently failed to in any manner instruct the plaintiff as to the dangers of the new situation, in working on said channeler, and in adjusting the drills thereof in order to perform the work required of him, and until up to the time of his injuries * * * the said defendant had wholly failed in any manner to give him any instruction whatever, or to explain in any manner the dangers attendant upon such duties”; that under his new duties it became necessary for him to, without direct orders from any one, and without such orders he did, go upon the top of said machine and fasten or adjust such drills preparatory to letting them down into the groove; that he fastened the chain upon the pulley with his left hand, and held himself upon the machine with his right hand; that, by reason of his ignorance of such work and the danger incident thereto, he placed his right hand in such a position on the top of the channeler that, should the drills suddenly fall, the chain holding them would fall on his right arm, and had his arm in such position for one second only; that there was nothing in the appearance of such channeler, machinery, etc., indicating that such drills would suddenly fall; that he used his eyesight, mind, and other faculties to determine if there was any danger; that he could see no danger; that he used great care and caution in performing his duties, notwithstanding which the drill and chain attached thereto suddenly and instantly fell, caught his right arm, and mashed and mangled it so that it had to be amputated, etc. This paragraph concludes as follows: “All of which injuries he says he received on account of the sole negligence of the defendant in its ordering plaintiff from a safe place to one of extra hazard, the work and duties required in adjusting such drills being unsafe and dangerous to him, without experience, and in its negligent failure to warn, instruct, or explain to plaintiff the dangers of operating such channeler and the drills thereon.” There is also the necessary averment that appellee was without fault or negligence. The second paragraph has all the averments of the first, and contains the additional averments that the appellant negligently failed to furnish a sufficient number of servants to properly and safely run the channeling machine. The third paragraph is substantially like the second, except that it charges that appellant's servants in charge of the machine were incompetent and known to be such by appellant; that such facts were unknown to appellee, and that he was ordered to go upon the machine to adjust the drills, etc., by one Mitchell, who was in charge thereof; and that said Mitchell struck the drills with a hammer while appellee was so adjusting the drills, when the chain fell and caught his arm. The fourth paragraph differed from the third, in that it is there averred that the channeling machine was defective, both as to its cogs and pulleys; that appellant knew said fact; and that appellee was ignorant thereof. The fifth paragraph states, in substance, the same facts as to the alleged negligence of appellant, appellee's freedom from negligence, and that the channeling machine was in charge of one Mitchell, whose orders appellee was bound to obey. It was the intention of the pleader to state facts which would bring this paragraph within the provisions of the act approved March 4, 1893, commonly known as the “Co-Employés Liability Act.” The trial court overruled a demurrer to each of these paragraphs, and appellant excepted. The cause was put at issue by an answer in denial. Trial by jury resulted in a general verdict for appellee for $2,000. With the general verdict, the jury returned special findings of fact by way of answers to interrogatories submitted to them. The appellant moved for judgment in its favor on the facts specially found; also, moved in arrest of judgment and for a new trial. Each of these motions were overruled, and appellant has assigned all of said adverse rulings as error.

The learned counsel for appellant has spent much time in discussing the sufficiency of each paragraph of complaint, but has failed to cite any authorities in support of his argument. To take up and discuss seriatim the many questions argued by appellant would take much time and labor, without corresponding fruitful results. After a careful consideration of the complaint, and an examination of the authorities applicable to cases of this character, we are led to the conclusion that each paragraph of the complaint stated a cause of action. The complaint, in general terms, proceeds upon the theory that appellee was employed by appellant to perform a certain service, which was unattended by danger; that while so employed he was ordered by appellant to perform another and different service; that he was inexperienced in such latter service; that it was attended with great peril and extra hazard; that he was ignorant thereof, and that appellant carelessly and negligently failed to instruct or warn him of such danger; and that such danger was not apparent to an inexperienced person. We think the facts stated in the complaint bring it within the rule laid down in the case of Strawboard Co. v. Foust, 12 Ind. App. 421, 39 N. E. 891, where it was held, under such facts, that the rule that the servant assumed the risk incident to the employment did not apply. The court did not err in overruling the demurrer to each paragraph of the complaint.

The next question discussed by counsel is the overruling of the motion for judgment on the answers to interrogatories. A correct determination of this question necessitates a statement of the facts specially found. The interrogatories and answers thereto are brief, and we give them in full: “(1) Did plaintiff place his arm beneath the chain to which the drills were then suspended? to wit, his injured arm? Yes. (2) Did plaintiff know that the drills were suspended from the chains when he placed his arm beneath the chain? Yes. (3) Did plaintiff, after placing his arm beneath the chain, hold it there for the space of about one minute, before the drills dropped and pulled down the chain upon his arm? Yes. (4) Could not plaintiff have seen, had he looked, that the drills were suspended from the chain when he placed his arm beneath the chain? Yes. (5) What was there, had plaintiff looked, to have prevented him seeing that the drills were suspended to the end of the same chain that fell upon his arm? Nothing. (6) Did any one give plaintiff any specific command, at the time he went upon the channeler, to go upon the channeler? No. (7) Did plaintiff not climb upon the channeler, to the point where he was injured, without any specific order at the time given for him to so climb? Yes. * * * (9) Had plaintiff not had about ten years' experience, at the time of the accident, in working in quarries where the Wardwell channeler was in use? No. (10) Had plaintiff not frequently before the date of his injury worked as a side man with the Wardwell channeler, a machine similar to the one on which he was injured? No. (11) Could plaintiff not have attached the hook to the drills by reaching over the wire that connected the drills with the chain that fell upon him? No. (12) Was plaintiff not warned by one Mitchell, after he (plaintiff) went above, to be careful about the...