Cook v. Ormsby
| Decision Date | 27 October 1909 |
| Docket Number | 6,505 |
| Citation | 89 N.E. 525,45 Ind.App. 352 |
| Parties | COOK v. ORMSBY ET AL |
| Court | Indiana Appellate Court |
Rehearing denied January 28, 1910. Transfer denied February 16, 1910.
From Tippecanoe Circuit Court; Richard P. De Hart, Judge.
Action by Louis Cook against John Ormsby and others. From a judgment for defendants, plaintiff appeals.
Reversed.
Boulden & Boulden, Hanna & Hall and Wilson & Quinn, for appellant.
Stuart Hammond & Simms and Miller, Shirley & Miller, for appellees.
Appellant in his complaint alleged that on March 28, 1904, appellees were engaged in business as partners under the firm name of the "Western Hoop Company," and were then engaged in operating a mill and machinery in the manufacture of hoops and lumber at the town of Ockley; that on said day appellant was in the employ of appellees, and under the orders and directions of the latter was engaged in operating an edging saw and machinery by running plank and other lumber against said saw, which was about eighteen inches in diameter, set in a frame constructed of wood, with a movable track attached, and used for the purpose of stripping off the bark and straightening the edges of the lumber there used in said manufacturing plant; that prior to the day of the accident, and on the forenoon of that day, appellant was engaged at other labor in and about said factory, and had no knowledge or experience in the operation of said saw, nor of the attending danger in its operation without a proper guard, all of which the appellees at the time well knew; "that said saw could have been guarded and made absolutely safe without impairing its usefulness for the purpose for which it was intended;" that appellees carelessly and negligently ran said saw with which appellant so worked without providing any proper guard around and over it, and failed to provide any means whatever to protect appellant from coming in direct contact with such saw while so operating it; that appellees knew that said saw at that time had no guard or other device for the protection of the operator; that on said March 29, having full knowledge of the facts aforesaid, appellees ordered and required appellant to quit his other labors in said factory and to operate said saw as aforesaid, which orders he then and there obeyed, and while thus engaged in the discharge of his duties, and without fault or negligence on his part, and while in the act of pushing a board through said saw to take off the rough edges thereof, and while his attention was wholly and completely directed to said work, one of appellees' employes suddenly and without warning to the appellant pinched or pushed him from behind, causing him involuntarily to start and thrust his hand forward into said saw, and in consequence of appellee's negligence, as aforesaid, and by reason of the unprotected and unsafe condition of appellee's said saw, as aforesaid, appellant's right hand, wrist and arm came in contact with said saw and were injured; that said injuries were occasioned by the carelessness and negligence of the appellees, as aforesaid, and without any fault or negligence on the part of appellant.
To this complaint, which was in one paragraph, a demurrer for want of facts was sustained. Appellant refused to plead further, and judgment was rendered against him and in favor of appellees for costs.
Does the complaint, the substance of which we have given, state a cause of action? The statute (§ 8029 Burns 1908, Acts 1899, p. 231, § 9) makes it the duty of the owner of any manufacturing establishment properly to guard all saws therein while they are in use, and the failure of such owner to obey this statutory mandate, when possible so to do ordinarily will be regarded as negligence per se. Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 73 N.E. 899; Evansville Hoop, etc., Co. v. Bailey (1909), 43 Ind.App. 153, 84 N.E. 549; United States Cement Co. v. Cooper (1909), 172 Ind. 599, 88 N.E. 69; Nickey v. Dougan (1905), 34 Ind.App. 601, 73 N.E. 288. It has been held that this statute extends the common-law duty of persons operating manufacturing plants as to furnishing safe place, works and machinery for their employes (Bessler v. Laughlin [1907], 168 Ind. 38, 79 N.E. 1033; Robbins v. Fort Wayne Iron, etc., Co. [1908], 41 Ind.App. 557, 84 N.E. 514), its purpose being to minimize the danger in the use of dangerous machinery in such plants. In the case before us, the saw was unguarded. It could have been guarded without rendering it useless for the purposes intended. While appellant was engaged in the work assigned to him his hand came in contact with said saw and was severely injured. It is argued that the unguarded saw was not, and that the act of a fellow servant in pinching appellant was, the proximate cause of the injury. The complaint shows that appellees disregarded a statutory duty owing by them to the appellant, which omission, under the decided cases in this State, constituted negligence. The alleged act of appellant's fellow servant, as a matter of law, might or might not be considered negligence, for from that act the injury complained of did not necessarily follow. The question might be made to depend upon the facts and circumstances existing at the time the act was committed. But if it be conceded that the act was a negligent one, in that it caused appellant involuntarily to thrust his hand against an unguarded saw, we fail to see how it would furnish an excuse for appellees' neglect to discharge their statutory duty toward appellant. It is said that the injury was the natural sequence of the pinching--the act of a responsible agent--and without which the accident would not have happened. On the other hand, it is certainly true that had the saw been properly guarded the injury would have been avoided, for, without the negligence of appellees the accident would not have occurred. Therefore, whether the negligence of appellees directly produced or concurred directly in producing the injury can make...
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