Dodge Mfg. Co. v. Kronewitter
| Decision Date | 20 February 1914 |
| Docket Number | No. 8182.,8182. |
| Citation | 104 N.E. 99,57 Ind.App. 190 |
| Parties | DODGE MFG. CO. v. KRONEWITTER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, La Porte County; Andrew J. Hickey, Judge.
Action by Chas. F. Kronewitter against the Dodge Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions.Frank E. Osborn, W. A. McVey, and Lee L. Osborn, all of La Porte, for appellant. F. J. Lewis Meyer, of South Bend, for appellee.
Appellee was employed by appellant and was engaged in operating a riveting machine in appellant's factory at the time he received the injury for which he sues in this action. The case was tried upon the issues formed by the general denial to the fourth paragraph of amended complaint, and the trial resulted in a verdict and judgment for appellee.
[1] A demurrer addressed to the fourth paragraph of complaint was overruled, and this ruling is assigned as error and presents the first question for our consideration.
This paragraph of complaint discloses that appellee at the time he received his injury was operating a pneumatic riveter, the power of which was furnished by compressed air conducted to it through a tube about 100 feet in length, and that it was so constructed that the supply of compressed air could be turned on and off by means of a valve located about 100 feet distant from the machine. When this valve was closed, it prevented further air from entering the tube, but the compressed air which remained in the tube between the valve and the machine and in the machine itself was sufficient to cause it to move unless it was exhausted by operating the machine, after the valve was closed, which could be done by moving the lever up and down until the pressure was exhausted. It is alleged that the defendant knew, or by the exercise of ordinary prudence could have known, that the air pressure remaining in the tube and in the machine after the valve was closed was sufficient to move it, that the plaintiff, on account of his youth and inexperience, did not know this fact, and the defendant negligently failed and neglected to warn plaintiff against the danger of the machine moving after the air was shut off, but that plaintiff was informed by defendant that the way to stop the machine and put it out of use was to close such valve, and that defendant negligently failed to instruct plaintiff as to the means of exhausting the air in the tube and machine after the valve was closed. It further appears from the complaint that it was a part of plaintiff's work under his employment to remove a certain hose from some part of the machine, and at the time of his injury he was so engaged. Before attempting to remove this hose, he had the valve shut off 100 feet from the machine, and at the time he was engaged in removing the hose the machine was stopped, and he believed that he had done all that was necessary to stop such machine and that it could not be put in motion after the compressed air had been shut off at the valve. It is alleged that, after the air had been shut off by means of said valve as aforesaid, the machine was suddenly put in motion without notice to the plaintiff and without his knowledge, so that his hand and arm were caught in said machine and crushed and injured. There is also a general allegation in the complaint to the effect that the injuries to plaintiff were due to the negligence of the defendant company as charged in the complaint.
We have not attempted to set out the allegations of the complaint in all their details, but have endeavored to make a sufficient statement to show the theory upon which it was drafted and to disclose the objections which are raised against it. The objection raised against the complaint is that it shows upon its face that the negligence of the defendant as charged therein was not the proximate cause of plaintiff's injuries, but, on the contrary, that such injuries were caused by the intervention of some active agency which put the machine in motion. The complaint does not allege that the machine started because of any defective condition for which the defendant was liable, and it is not charged that the defendant was responsible for the machine starting otherwise than by its failure to warn plaintiff of the presence of the compressed air in the tube and in the machine and to instruct him as to the means of exhausting such pressure after the valve was closed. The position of appellant is that the pressure of the air in the tube and in the machine was simply a condition which was harmless unless some agency intervened to make it efficient, that the only negligence charged against the defendant related to the existence of this condition and its failure to warn against it, and that the complaint affirmatively shows that the machine was put in motion by some active intervening agency. As a result of this argument, it is asserted that the specific allegations of the complaint show that the chain of causation between the negligence charged and the injury was broken by an intervening agency which was directly responsible for the injury.
In passing upon the question thus presented, we must consider the complaint as a whole. The complaint alleges in general terms that the plaintiff's injuries were due to the negligence of said defendant company as herein alleged. This allegation charges with sufficient certainty that the negligence of defendant as charged in the complaint was the proximate cause of plaintiff's injury, and it must stand unless the specific allegations of the pleading are so inconsistent therewith as to show that the general averment is not true. It is a familiar rule of pleading that the general averments will be overcome and superseded by the facts specially averred in so far as the latter are inconsistent with the former. Indianapolis Union Ry. Co. v. Waddington, 169 Ind. 448, 82 N. E. 1030;Cleveland, etc., R. Co. v. Cyr, 43 Ind. App. 19, 86 N. E. 868.
It may be conceded that the facts specifically alleged in the complaint do show that some active agency intervened between the negligent conduct of defendant as charged and the injury, but this is not in itself sufficient to overcome the general allegation to which we have referred. The chain of causation is not broken by every intervening agency. To have this effect the intervention must be by a responsible agent. The specific allegations show that the machine was put in motion, but they do not disclose that it was put in motion by a responsible agent.
It is also well settled that an independent intervening agency does not break the chain of causation where the intervention of some such agency in such a manner as to produce injury ought to have been expected to occur according to ordinary experiences. If the original wrongdoer by reasonable foresight and prudence should have expected some such agency to intervene and produce injury, he cannot escape the consequences which directly result from his original negligence operating in connection with such intervening agency, even though the original negligence could not of itself have caused the injury. Nickey v. Steuder, 164 Ind. 189, 73 N. E. 117;Chicago, etc., R. Co. v. Pritchard, 168 Ind. 398, 79 N. E. 508, 81 N. E. 78, 9 L. R. A. (N. S.) 857; Shearman & Redfield, Negligence (5th Ed.) § 34.
The relation of intervening agencies to proximate cause and their effect as to breaking the chain of causation was recently considered by this court. Cleveland, etc., R. Co. v. Clark, 97 N. E. 822. A further discussion on this branch of the law would not be profitable. The court is of the opinion that the specific facts averred do not contradict and overcome the general averment that the injuries of plaintiff were due to the negligence of defendant set out therein. This general averment is broad enough to admit evidence to prove that the machine was put in motion by an irresponsible agent, or through some agency for which the defendant was responsible, or that the agency which was responsible for starting it was of such a character and the circumstances under which it intervened were such as not to break the chain of causation. Such proof would support the general allegation and would not to any extent contradict the facts specifically averred. The general averment of the ultimate fact will control unless it is shown to be untrue by the specific facts averred. Cleveland, etc., R. Co. et al. v. Clark, supra.
[2][3] The trial court overruled the motion of appellant for judgment in its favor on the answers of the jury to the interrogatories
notwithstanding the general verdict, and the correctness of this ruling is presented for review. By the answers to interrogatories the jury finds that the riveting machine was not defective in any way, that it would not operate unless the operating lever was moved, that the lever was not moved by appellee, that there was no evidence that the lever was caused to move by the machine swinging so as to bring the lever in contact with a tank, and that on the...
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Dodge Manufacturing Co. v. Kronewitter
... ... do so. A servant assumes the risk of all dangerous conditions ... which arise in the course of his employment and of which he ... has notice even though such dangerous conditions [57 Ind.App ... 198] are the result of the master's negligence ... Jenney Electric Mfg. Co. v. Flannery ... (1913), 53 Ind.App. 397, 98 N.E. 424; Fort Wayne, etc., ... Traction Co. v. Roudebush (1909), 173 Ind. 57, ... 88 N.E. 676, 89 N.E. 369. A servant will be deemed to have ... constructive notice of all dangerous conditions connected ... with his employment which he might ... ...