Evansville Hoop and Stave Company v. Bailey

• Decision Date: 21 April 1908
• Docket Number: 6,260
• Citation: 84 N.E. 549,43 Ind.App. 153
• Parties: EVANSVILLE HOOP AND STAVE COMPANY v. BAILEY
• Court: Indiana Appellate Court

84 N.E. 549

43 Ind.App. 153

EVANSVILLE HOOP AND STAVE COMPANY v. BAILEY

No. 6,260

Court of Appeals of Indiana

April 21, 1908

Rehearing denied October 7, 1908.

Transfer denied January 15, 1909.

From Posey Circuit Court; Walter S. Jackson, Special Judge.

Action by Albert Bailey against the Evansville Hoop & Stave Company. From a judgment on a verdict for plaintiff for $ 3,000, defendant appeals.

Affirmed.

Elmer E. Stevenson and Andrew J. Clark, for appellant.

W. D Hardy, G. K. Denton, W. D. Robinson and William E. Stilwell, for appellee.

RABB J. Roby, C. J., absent.

OPINION

RABB, J.--

The appellee sued appellant to recover damages for personal injuries alleged to have been caused by appellant's negligence. Appellant's demurrer to the complaint was overruled, an answer of general denial filed, the cause tried by a jury, and a verdict returned in favor of appellee. Appellant's motion for a new trial was overruled, and judgment rendered in favor of appellee on the verdict.

The rulings of the court on the demurrer to the complaint and motion for a new trial are assigned as errors here.

The complaint averred in substance that defendant was, at the time of the accident to plaintiff, engaged in the manufacture of barrel hoops, and that plaintiff was in its employ; that, at the date named, plaintiff was assigned by defendant to the work of off-bearing at a certain table where a gangsaw was operated; that while in the proper discharge of the duties of his employment he was injured in the following manner: "About 3:30 o'clock in the afternoon of said day, while the plaintiff was engaged in the performance of the duties of his employment at said table and saw where his duties were performed, his foot slipped on the floor, causing him to lose his balance and fall; that in falling his left hand and arm struck the top of said saw, which was open and exposed, without any guard around or above it to prevent his hand and arm from coming in contact therewith; that in striking said saw with his left hand and arm said hand and arm were so severely lacerated and injured that it was necessary to amputate said arm; * * * that said saw could have been guarded by defendant without interfering with the use thereof; * * * that the defendant carelessly, negligently and unlawfully failed to have said saw properly guarded at said time, in violation of the law of the State of Indiana, and that said injury to plaintiff was caused solely by the negligence of the defendant."

The point is made against the sufficiency of the complaint that it fails to show by direct averment or necessary inference that the negligence charged against appellant was the proximate cause of the appellee's injury, and many authorities are cited in support of appellant's contention.

That it must affirmatively appear from the averments of the complaint that the injury complained of was proximately caused by the negligence charged, admits of no controversy. The question presented is, does this fact appear from the direct averments of the complaint, or the necessary inferences arising therefrom?

Section nine of the acts of 1899 (Acts 1899, p. 231, § 8029 Burns 1908), being the factory act, requires that all saws used in manufacturing establishments shall be "properly guarded," and a failure on the part of the owner of such establishment properly to guard a saw used in such establishment, that could be properly guarded without interfering with its efficient use, is negligence per se. Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 73 N.E. 899; Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 75 N.E. 277; Nickey v. Dougan (1905), 34 Ind.App. 601, 73 N.E. 288; Espenlaub v. Ellis (1904), 34 Ind.App. 163, 72 N.E. 527; Blanchard-Hamilton Furniture Co. v. Colvin (1904), 34 Ind.App. 398.

Proximate cause is that act which immediately causes or fails to prevent an injury that might reasonably have been anticipated would result from the negligent act or omission charged, and without which such injury would not have occurred. 1 Thompson, Negligence (2d ed.), §§ 56, 58; Deming & Co. v. Merchants' Cotton-Press, etc., Co. (1891), 90 Tenn. 306, 313, 17 S.W. 89, 13 L. R. A. 518; Lindvall v. Woods (1891), 44 F. 855; Ring v. City of Cohoes (1879), 77 N.Y. 83, 89, 33 Am. Rep. 574; Laidlaw v. Sage (1899), 158 N.Y. 73, 52 N.E. 679, 44 L. R. A. 216; Taylor v. Baldwin (1889), 78 Cal. 517, 21 P. 124; Simons' Admr. v. Southern R. Co. (1898), 96 Va. 152, 31 S.E. 7; Lane v. Atlantic Works (1872), 111 Mass. 136; Mexican, etc., R. Co. v. Mussette (1894), 86 Tex. 708, 26 S.W. 1075, 24 L. R. A. 642; Gonzales v. City of Galveston (1892), 84 Tex. 3, 19 S.W. 284, 31 Am. St. 17; St. Louis, etc., R. Co. v. McKinsey (1890), 78 Tex. 298, 14 S.W. 645, 22 Am. St. 54; Seale v. Gulf, etc., R. Co. (1886), 65 Tex. 274, 57 Am. Rep. 602; Weick v. Lander (1874), 75 Ill. 93; Brown v. Wabash, etc., R. Co. (1886), 60 Mo.App. 222.

The test is to be found in the probably injurious consequences which were to be anticipated, and not in the number of subsequent events and agencies which might arise to bring such consequences about. 1 Thompson, Negligence (2d ed.), §§ 58, 59, and cases cited.

It is not required in order to fix appellant's liability, after its negligence has been established and resulting injury to the appellee, to show, in addition thereto, that the consequences of appellant's negligence could have been foreseen. It is sufficient that it be shown that the injuries are the natural, though not the inevitable, result of the appellant's negligent fault; such injuries as in ordinary circumstances are likely to ensue from the act or omission charged. 1 Thompson, Negligence (2d ed.), § 59; 1 Bailey, Per. Inj., § 1030; 1 Shearman & Redfield, Negligence (5th ed.), § 29; Louisville, etc., R. Co. v. Wood (1888), 113 Ind. 544, 14 N.E. 572; Clove v. McIntire (1889), 120 Ind. 262, 22 N.E. 128; Meredith v. Reed (1866), 26 Ind. 334; Billman v. Indianapolis, etc., R. Co. (1881), 76 Ind. 166, 40 Am. Rep. 230; White Sewing Machine Co. v. Richter (1891), 2 Ind.App. 331, 28 N.E. 446; Bohrer v. Dienhart Harness Co. (1898), 19 Ind.App. 489, 49 N.E. 296; Schumaker v. St. Paul, etc., R. Co. (1891), 46 Minn. 39, 48 N.W. 559, 12 L. R. A. 257; Christianson v. Chicago, etc., R. Co. (1896), 67 Minn. 94, 69 N.W. 640; Hill v. Winsor (1875), 118 Mass. 251; Hoepper v. Southern Hotel Co. (1898), 142 Mo. 378, 44 S.W. 257; Miller v. St. Louis, etc., R. Co. (1886), 90 Mo. 389, 2 S.W. 439.

The complaint undertakes to make out a case against appellant for failure to comply with the provisions of the statute referred to, and it is not questioned but that the complaint states facts sufficient to show negligence on the part of the appellant in failing properly to guard the saw, as required by the law. It also sufficiently appears that the appellee was injured by his hand and arm's coming in contact with the unguarded saw. But appellant contends that this is not sufficient, and that these facts do not show that appellant's failure properly to guard the saw was the proximate cause of the injury complained of. There is a general allegation in the complaint that appellee's injury was caused solely by the negligence of the defendant, without referring to what acts of negligence. We agree with appellant that this is an insufficient statement of fact to show that the negligent acts and omissions charged in the complaint were the proximate cause of appellee's injury. There is no formal averment in the complaint that the negligence charged was the proximate cause of the injury complained of, nor does the complaint, in so many words, aver that the saw that injured appellee could have been so guarded as to prevent the particular injury suffered by appellee. The statute upon which the action is founded simply requires that the saw or other dangerous machine be "properly guarded," without specifying in what manner the same is to be guarded, or what dangers are to be guarded against, nor does it in express terms designate what persons or things are designed to be protected by its provisions. What is meant, therefore, by the term "properly guarded," must be determined by a proper construction of the statute.

It is a matter of common knowledge that, owing to the spirit of invention and the demands of business, the use of powerful swiftly-moving and dangerous machinery in manufacturing establishments in this country has been constantly growing at an ever-increasing rate for many years, and at the same time the casualty list from accidents resulting from the use of such machinery has been constantly swelling until at the date of the passage of this law it had reached alarming proportions. Both the title of the act, which declares it to be "An act concerning labor, and providing means for protecting the liberty, safety and health of laborers," etc., and the provisions of the law, clearly show that this condition of affairs was in the legislative mind in the enactment of this law, and was an evil sought to be remedied thereby. Its obvious purpose, among other things, was to reduce the hazard to those employed about dangerous machinery, to protect them from injury by accidental contact therewith, and it was evidently designed to protect the employee not only from unavoidable accidents, but from his own negligent and careless acts which might result in his injury from accidental contact with such dangerous machinery. Not that the law gives to the employe a new right or remedy against his employer for such injuries, or in anywise relieves him from his common-law duty to exercise reasonable care to protect himself. Its purpose is to prevent injury, not to give a right or remedy for its occurrence. Davis v. Mercer Lumber Co., supra; Nickey v. Dougan...