Daugherty v. Midland Steel Company
| Decision Date | 19 May 1899 |
| Docket Number | 2,762 |
| Citation | 53 N.E. 844,23 Ind.App. 78 |
| Parties | DAUGHERTY v. THE MIDLAND STEEL COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied October 12, 1899.
From the Delaware Circuit Court.
Reversed.
J. N Templer, C. C. Ball and E. R. Templer, for appellant.
W. H H. Miller, J. B. Elam, S.D. Miller and J. W. Fesler, for appellee.
The appellant brought his action against the appellee to recover damages for a personal injury. The complaint showed that the appellant was engaged as an employe of the appellee in its manufacturing establishment, at work in a pit wherein was a certain hydraulic crane, connected with which was a hydraulic feed pump, by the use of which the water to operate the crane was pumped from a cistern into an accumulator, whence the water flowed into the crane and operated it. From the jib of the crane were hung certain heavy iron chains, and the crane was used in appellee's business for lifting, moving, and handling heavy billets of steel and iron and other weighty articles. It was operated by hydraulic pressure, and when in proper order and condition, easily, safely, readily, rapidly, and promptly could be started, moved, stopped, and otherwise controlled by the person operating it, whether loaded or empty. The pit in the factory in which the crane was operated was large and roomy, and furnished reasonable opportunity for the workmen there employed to perform their duties with reasonable safety. It was alleged that the appellee hired the appellant to work at said business in said pit, where said crane was operated, and he worked therein pursuant to said hiring; that while he was so working therein, on or about the last of September, 1895, and about ten days next before he suffered the injury complained of, the appellee negligently permitted said crane, and the appliances whereby it was so operated, to become and remain defective and out of repair, in that the water-valves, commonly called check-valves, of said hydraulic feed pump and the accumulator of said crane became and were worn, untrue and out of repair, and would not fit tightly in and upon their respective valve-seats in said pump, so that by reason of said defect in said check-valves, and their failure to fit tightly in and upon their valve-seats, said pump leaked badly and would not hold water, and, by reason of said leaking and inability to hold water, said pump could not keep said crane sufficiently supplied with water properly to perform its functions, and the leaking of said accumulator contributed to reduce the power of said crane, so that thereby it became difficult for the person operating the crane to control it, and it was difficult to start it, and impossible properly to control it, or promptly to stop it when in rapid motion, whereby the operation of the crane became dangerous to the workmen in the pit, by reason of their liability to be struck and injured by the crane and its heavy chains and the billets or heavy substances appended thereto while in motion with said crane, and whereby the hazards of the appellant's employment were enhanced. It was further alleged, that at the same time the appellee negligently permitted the available dimensions of said pit to become and to remain materially lessened, by reason of accumulations therein and around the sides thereof of large quantities of scrap, dirt, sand, clay, bricks, steel billets, and molds, whereby said workmen laboring in said pit were hampered and rendered in danger from being hit by said chains and loads attached thereto while in motion with said crane, and whereby said dangers of said workmen were greatly increased and the hazards of appellant's said employment were further enhanced. It was alleged that the appellant, "on or about the last of September, 1895, and within about ten days prior to the date of plaintiff's said injury hereinafter stated, having knowledge of the dangers and hazards of his said employment, complained about the same to" certain persons named, being defendant's superintendent of steel furnaces in said factory, its foreman of the open hearth steel furnaces in said factory, its night foreman of said open hearth steel furnaces in said factory, and the defendant's pit boss of said pit where plaintiff worked; "and particularly the plaintiff complained to said parties of said defective crane and appliances; and defendant by her said officers, superintendent, foremen, and boss aforesaid, then and there induced plaintiff to continue to work in said dangers by promising that within a reasonable time said crane and appliances would be repaired and its appliances be put in proper working order, and by promising to remove said scrap, dirt, sand, clay, bricks, steel billets, and molds from said pit; that soon after the making of said promises, and while said promises remained in force, and when sufficient time for the fulfilment of said promises had elapsed, to wit, within six days after said promise was made, and when the same was wholly unfulfilled, and when the plaintiff believed and had good reason to believe the defendant still intended to fulfil said promises, and while plaintiff was so working in said pit in defendant's said business in pursuance of said hiring, and while said service was not so imminently dangerous that a man of ordinary prudence would have refused to work therein, said crane, in spite of the efforts of the persons operating the same to stop the same, and while being so operated in defendant's said business, moved swiftly and caused heavy chains so hanging from said jib thereof to strike plaintiff and knock the plaintiff against a steel post, whereby," etc., the plaintiff's injury being particularly described. It was alleged that if said crane and said appliances had been kept constantly in good repair, said crane could have been promptly stopped without striking or injuring the appellant; that said hampered condition of said pit, resulting from said accumulations therein of scrap, dirt, sand, clay, brick, steel billets, and molds, hindered the appellant from eluding and escaping said injury from said chains; that the appellee's "permitting said crane and said appliances so to become defective and out of repair, and said permitting said scrap," etc. to accumulate in said pit was the sole and immediate cause of said injury to appellant; that the appellant was without fault or negligence contributing to his said injury; "that by reason of the premises, the plaintiff has been damaged," etc.
The appellee answered by a general denial and a paragraph of affirmative defense, which need not be further noticed. There was a trial by jury, and a general verdict in favor of the appellant for $ 2,500 was returned, with answers of the jury to interrogatories submitted by the parties. The appellee moved in arrest of judgment, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained this motion and ordered that the judgment rest, to which ruling and order the appellant excepted; and thereupon the appellant asked leave to amend the complaint, and time was given; but at the next term of the court, the appellant withdrew his request to amend, and, upon the order of the court, the cause was struck from the docket.
There has been some discussion by counsel of a suggestion that there has been no final judgment, and that therefore the appeal is not well taken. We cannot accede to this suggestion. The controversy was ended between the parties so far as the court below could do anything in this case to terminate it. The case had reached such an end in the court below that...
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