Cook v. Ormsby

• Decision Date: 27 October 1909
• Docket Number: No. 6,505.,6,505.
• Citation: 45 Ind.App. 352,89 N.E. 525
• Parties: COOK v. ORMSBY et al.
• Court: Indiana Appellate Court

45 Ind.App. 352

89 N.E. 525

COOK

v.ORMSBY et al.

No. 6,505.¹

Appellate Court of Indiana, Division No. 1.

Oct. 27, 1909.

Appeal from Circuit Court, Tippecanoe County; R. P. DeHart, Judge.

Action by Lewis Cook against John Ormsby and others. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed, with instructions to overrule the demurrer.Boulden & Boulden, Hanna & Hall, and Wilson & Quinn, for appellant. Miller, Shirley & Miller, for appellees.

MYERS, J.

Appellant in his complaint, filed in the court below against appellees, alleged that on the 28th day of March, 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 18 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 sap 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 rendering the same useless, or 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 the same, and failed to provide any means whatever to protect appellant from coming in direct contact with the same 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 29th, 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' employés suddenly, and without warning to the appellant, pinched or pushed him from behind, causing him to involuntarily 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 appellees' said saw, as aforesaid, appellant's right hand, wrist, and arm came in contact with said saw, and was injured, describing his injuries; 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 cost.

Does the complaint, the substance of which we have given, state a cause of action? The statute (Acts 1899, p. 231, c. 142, § 9 [Section 8029, Burns' Ann. St. 1908]) makes it the duty of the owner of any manufacturing establishment to properly guard all saws therein while the same 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., 164 Ind. 413, 73 N. E. 899;Evansville Hoop & Stave Co. v. Bailey (Ind. App.) 84 N. E. 549;Nickey v. Dougan, 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 employés (Bessler v. Laughlin, 168 Ind. 38, 79 N. E. 1033;Robbins v. Ft. Wayne Iron, etc., Co., 41 Ind. App. 557, 84 N. E. 514); its purpose being to minimize the danger of employés using 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. That while appellant was engaged in the work assigned 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,...