Fed. Cement Tile Co. v. Korff

• Decision Date: 24 January 1912
• Docket Number: No. 7,382.,7,382.
• Citation: 97 N.E. 185,50 Ind.App. 608
• Parties: FEDERAL CEMENT TILE CO. v. KORFF.
• Court: Indiana Appellate Court

50 Ind.App. 608

97 N.E. 185

FEDERAL CEMENT TILE CO.

v.KORFF.

No. 7,382.¹

Appellate Court of Indiana, Division No. 2.

Jan. 24, 1912.

Appeal from Superior Court, Lake County; V. S. Reiter, Judge.

Action by Walter Korff against the Federal Cement Tile Company. Judgment for plaintiff, and defendant appeals. Affirmed.William J. Whinery, for appellant. F. N. Gavit and J. E. Westfall, for appellee.

ADAMS, J.

Action by the appellee against the appellant for damages on account of personal injuries alleged to have been sustained by the appellee, while in the employ of the appellant, and through the negligence of the appellant.

The appellee was employed by the appellant as a workman in laying tile upon a certain roof, and while acting in the course of his said employment he was required to go upon the roof and lay cement tile thereon. The roof was not solid or firm, but consisted of iron girders laid four feet apart, upon which appellee was required to lay said tile, and before the placing of such tile thereon, there was no other material upon said roof, except said iron girders, which were so placed that a space of four feet between each girder was left uncovered. The tile which the plaintiff was engaged in laying were each seven-eighths of an inch in thickness, two feet in width, and four feet in length, and were constructed of cement or concrete set upon and built over a wire netting, placed therein to add strength to the same. In the laying of said tile, appellee was required to, and did, when any tile was laid in said roof, stand upon the same, while laying other and additional tile thereon.

The complaint charges the appellant with negligence as follows: “That defendant carelessly and negligently furnished plaintiff, for use on said roof, a certain tile of the dimensions above given, which had no wire netting or screen or wire of any kind in the same; that said tile, without such wire therein, was too weak to sustain the weight of a man thereon; that the absence of such wire in said tile was well known to the defendant and unknown to the plaintiff; that plaintiff could not have discovered the absence of such wire in said tile by reasonable inspection at any time before said injury; that on the 16th day of October, 1907, plaintiff was engaged in laying tile on said roof, and did lay said tile, which did not contain any wire upon said roof, and in the course of his said employment did stand upon said defective tile, for the purpose of laying other tile upon said roof, and while so standing upon the same the said tile, because of the absence of such wire therein, was too weak to sustain plaintiff's weight, and did break and permit plaintiff's body to fall through the same, and the hole made thereby in said roof, and to fall to the floor of the building underneath said roof, a distance of 25 feet.” The complaint concludes by detailing the nature and extent of the injuries sustained by appellee, and the damages resulting from said injuries.

A motion for a change of venue from Lake county, supported by affidavit, was filed by the appellant, and denied by the court, upon the ground that the same was not filed within the time provided by rule 10 of the Lake superior court. Appellant thereupon asked leave to file an amended affidavit in support of its motion for a change of venue, which the court also refused. Exceptions were duly taken to each of these rulings. A demurrer to the complaint for want of sufficient facts was then filed, which demurrer was overruled, and the cause put at issue by answer in general denial. Trial by jury, and general verdict for appellee in the sum of $700.

Answers to interrogatories were returned with the general verdict, and appellant moved for judgment in its favor upon such answers to interrogatories, notwithstanding the general verdict. This motion, together with the motion for a new trial, was overruled, and judgment rendered upon the verdict.

Errors assigned and relied upon call in question the action of the trial court in overruling the demurrer to the complaint, the motion for judgment upon the answers to the interrogatories, and the motion for a new trial.

[1][2] It is urged that the complaint does not state a cause of action, in that there is no averment that appellee did not have knowledge of the defect in the tile prior to his injury; and that, the dangers being shown to be open and obvious, appellee must be considered as having assumed all risks incident to his employment. It will be observed that the particular negligence charged in the complaint, and upon which appellee bases his right to recover, is the failure of appellant to furnish him safe material with which to work. The defendant had furnished a defective tile, one which did not have molded into it any metal re-enforcement, and was therefore too weak to sustain the weight of a man thereon. In the prosecution of his work, it was necessary for appellee to stand upon this defective tile, while laying other tile. “That the absence of such wire in such tile was well known to the defendant, and unknown to the plaintiff.” While it is true that an employé assumes the risk from open and obvious defects and dangers, such as would be known by the exercise of ordinary care, yet, as a matter of pleading, an averment that he did not know of such defects or danger is sufficient, not only to rebut or repel actual knowledge, but also implied or constructive knowledge. Baltimore, etc., R. Co. v. Roberts, 161 Ind. 1, 7, 67 N. E. 530;Consolidated Stone Co. v. Summit, 152 Ind. 297, 300, 53 N. E. 235;Louisville, etc., R. Co. v. Miller, 140 Ind. 685, 686, 40 N. E. 116;Chicago, etc., R. Co. v. Richards, 28 Ind. App. 46, 55, 61 N. E. 18;Columbian Enameling Co. v. Burke, 37 Ind. App. 518, 521, 77 N. E. 409, 117 Am. St. Rep. 337. We think the complaint states a cause of action, and there was no error in overruling the demurrer thereto.

[3][4] It is next insisted that, as shown by the evidence, the tile was manufactured by the appellant, and the omission of the metal re-enforcement from the particular tile which caused the injury was the act of a fellow servant of appellee, employed by the appellant in the same general enterprise. There is no merit in this contention. It is the duty of the master to provide safe materials and appliances, and that duty is a continuing one, and one which the appellant could not delegate to an employé in such a manner as to relieve it from responsibility. It was the duty of the master, in this instance, to provide the appellee with roof tile of sufficient strength to enable him to lay the same in the usual manner, and without danger to himself. The appellant being a corporation, this duty was, of necessity, delegated to some natural person or persons, but the placing of the metal re-enforcement in the cement tile, while in process of manufacture, was the duty of the master. The employé to whom such work was assigned, no matter what his rank or grade might be, would be a principal, and not a fellow servant, as to exempt the master from liability. Standard Oil Co. v. Bowker, 141 Ind. 12, 18, 40 N. E. 128;Indiana, etc., R. Co. v. Snyder, ...