Consol. Stone Co. v. Staggs

• Decision Date: 24 May 1904
• Docket Number: No. 4,604.,4,604.
• Citation: 71 N.E. 161
• Parties: CONSOLIDATED STONE CO. v. STAGGS.
• Court: Indiana Appellate Court

71 N.E. 161

CONSOLIDATED STONE CO.

v.STAGGS.

No. 4,604.^*

Appellate Court of Indiana, Division No. 2.

May 24, 1904.

Appeal from Circuit Court, Greene County; O. B. Harris, Judge.

Action by Lila Staggs, administratrix, against the Consolidated Stone Company. Judgment for plaintiff. Defendant appeals. Reversed.

Duncan & Batman and Cyrus E. Davis, for appellant. East & East, for appellee.

WILEY, J.

Action by appellee against appellant and the Morton C. Hunter Stone Company to recover damages for causing the death of appellee's decedent. Complaint in three paragraphs. Appellant's motion to make the complaint more specific was overruled, as was also its demurrer to the complaint. Answer in denial, trial by jury, verdict and judgment for appellee for $7,000. Pending trial, a dismissal was entered as to the Morton C. Hunter Stone Company. The jury found specially by its answers to interrogatories. Appellant's motion for judgment on the answers to interrogatories and for a new trial were each respectively overruled. The several rulings adverse to appellant are assigned as errors.

Appellant's first assignment of error is that “the court erred in overruling appellant's motion to make the third paragraph of complaint more specific.” No question is presented by this assignment, for the reason that no such motion appears in the record.

The first paragraph of complaint avers that appellant was operating a stone quarry, in which was used a great deal of machinery, including derricks, masts, etc., and that one wire guy rope, 250 feet long, extended from the top of the boom mast south to a post fastened in the ground; that about 20 feet north of the post a tramway 15 feet high had been built, running east and west, a track laid thereon, and over which appellant's ledge hands and other employés removed spalls, broken stones, and other débris, in a dump car, by pushing with their hands, passing under said guy. It is then alleged: “That the defendants were careless and negligent in the erection, placing, and fixing of said guy rope, *** in this: That said post and the fastening of the south end of said guy was placed too low, and in such situation that, should said guy rope slack while the employés were moving a truck loaded with stone, then it would drop so low down at the point where it passed over the said tramway as to drag the load off said truck and throw the same on the employés of the company engaged in pushing said truck, so that each time the employés were moving a truck loaded with stone beneath said guy, and the defendants at the derrick should turn said boom in a westerly or southerly direction, it would suddenly, and without the knowledge of the employés of the defendants who were moving said truck beneath said guy, endanger them from the guy suddenly catching said stone loaded on said car. *** And by reason of these facts the place behind said moving truck became dangerous and unsafe to the said employés. All of said facts were well known to the defendants before the grievances named.” If is further charged that “the defendant, well knowing of the dangers of slacking said guy rope, and that the deceased was engaged as its employé in pushing said truck under and beneath said guy rope loaded with stone and spalls, did then and there, at a point 250 feet north of said truck, suddenly, and without the knowledge of said Staggs, deceased, so slacken such guy rope that the same instantly lowered and suddenly caught a stone on said truck, and instantly threw it off said car on the said Staggs, instantly killing him.” The general averments of the second paragraph are substantially like those of the first. The particular acts of negligence charged in this paragraph, in the language of the complaint, are as follows: “That appellant was negligent and careless in the fixing, placing, and fastening the same to a post too low to allow the passing of said dump car over its track, loaded with spalls and broken stone, in case the derrick north of it should slacken and lower the said guy during the time when said dump car was passing over its tracks so loaded, and that by reason of said guy being fastened too low the employés of the defendant were in danger of being injured by said guy slacking and catching the stone loaded on said car and throwing it on the employés of the defendant engaged in pushing it. *** That all of said dangers were known to the defendant. But they were not known to the deceased for the reason that the tramway, track, and dump car were 200 yards south of the derrick, and ‘he could not know, without warning, when the defendants would slacken the guy.’ That the mast was so erected that when the boom attached was turned to the southeast, south, or southwest it would slacken the guy, and allow it to suddenly lower itself by its own weight so far down as to strike stone on the dump car, and throw them off on the employés.” That the appellant, “well knowing the above facts and dangers to said employés, and while the said John Staggs was so employed by them, and while he was in the line of his duty under his said employment in so pushing the said dump car so loaded with spalls and broken stone, without notice or warning of any kind suddenly turned the boom pole to the south and west, and thereby so slackened the said guy rope that the same suddenly caught a stone about two feet square so loaded thereon, and jerked it over and off the said dump car and on the head, shoulders, and body of said John Staggs, thereby instantly killing him.” The third paragraph charges that the construction of...