Fletcher Brothers Company v. Hyde

• Decision Date: 29 June 1905
• Docket Number: 5,392
• Parties: FLETCHER BROTHERS COMPANY v. HYDE
• Court: Indiana Appellate Court

75 N.E. 9

36 Ind.App. 96

FLETCHER BROTHERS COMPANY v. HYDE

No. 5,392

Court of Appeals of Indiana

June 29, 1905

From Madison Circuit Court; John F. McClure, Judge.

Action by John E. Hyde against Fletcher Brothers Company. From a judgment on a verdict for plaintiff for $ 1,800, defendant appeals.

Reversed.

Kittinger & Diven, for appellant.

Bagot & Bagot and Ellison & Ellis, for appellee.

OPINION

BLACK, J.

The appellee's complaint against the appellant consisted of three paragraphs, but the court instructed the jury that they need not give the first or second paragraphs consideration.

In the third paragraph it was alleged, after introductory matter that in January, 1900, the appellant was building a large stone and brick building in the city of Anderson, known as the "new Christian church;" that in the construction thereof it became necessary to move from the street and place in the building trusses more than forty feet long and eight feet wide, framed and consisting of iron beams, plates and crossbars, and each of many tons weight that January 23, 1900, the appellant employed the appellee to work for the appellant in the construction of this building and on the next day the appellant ordered and put the appellee to work in assisting in bringing the trusses into the building from the street and putting them in position in the building; that a part of this work consisted in sliding one of the trusses through a large opening in the east wall of the building from the street to the inside of the building, standing it in an east-and-west direction on the floor of the building in an upright position, resting upon its edge, and then by means of ropes, blocks, pulleys chains, crowbars, props and windlass easing or letting down the truss toward the south from its upright position, so that it would lie upon its side on the floor; that, in the work of so lowering or letting down the truss upon its side, the appellant attached a rope to the truss near the center of the top thereof, carried the rope back to the north and east, allowing the rope to angle from the truss in a northeast direction, and passed the rope through a block or loop attached to an I-beam in the northeast corner of the building, and then attached the end of the rope to a windlass in the south part of the building, south of the truss; that the only support the appellant had for the truss in so letting it down consisted of this rope and windless and a small wooden prop used for such purpose by the appellant; that by means of the windlass and the wooden prop under the top of the truss the appellant attempted to let the truss down upon its side as aforesaid, and before starting to do so the appellant placed one end of a crowbar under the east end of the truss on the opposite side from the windlass--the north side--and between the truss and a large brick column forming a part of the building, which stood three or four feet north of the truss and near the east end thereof; that the brick column contained, on the south side thereof, a small niche or recess, and the appellant then and there ordered and directed the appellee to stand against the brick column, and within the niche or recess, and to hold the upper end of the crowbar while the truss was being let down; that the rope, pulley, I-beam and windlass were so placed by the appellant that the rope left the truss at an acute angle toward the east end thereof, and the crowbar was so placed by the appellant under the truss and the prop was so placed and handled by the appellant that when the truss left the perpendicular in its descent the great weight of the truss upon the rope was likely, by reason of the angle of the rope with the truss, to cause the bottom of the east end of the truss to kick up and the truss to slip or slide toward the east and north, in the direction of the rope and toward the appellee, and to wrench and throw down the prop, and to wrench the crowbar out of the appellee's hands, thus allowing the truss to fall, and catch, crush and injure the appellee; that by reason of the facts aforesaid the place where the appellant so ordered and directed the appellee to work was a very dangerous and hazardous one, and the work at which the appellee was thus put by the appellant was very dangerous and hazardous to a person who was inexperienced in said work, and who was uninstructed in the proper method and manner of doing the same; that said danger was not apparent to appellee, and was of such a character that it would only be discovered or detected by a person of experience in that line of employment, or by instruction from some one having knowledge thereof; that to perform the work safely it was necessary that a person have sufficient experience and skill in the work to know and appreciate the weight of the truss, the capacity of the windlass and those operating it, "the character and extent of the bearings upon said rope and windlass, the effect upon said truss, and its action in being lowered, the effect of the rope's being attached at an angle as aforesaid, and also the resistance of said truss against said crowbar and the strength and leverage of said windlass"--all of which facts were known to the appellant and unknown to the appellee, as the appellant well knew; that a part of the work and the danger thereof in the manner in which it was done by the appellant was not ordinary and simple labor, but was intricate and complicated, in that it consisted in moving, raising and lowering great weights by mechanical devices and machinery, the power and strength, capacity and tendencies, of which, and the manner of operating and controlling, were not open, plain or apparent, but could only be learned by experience in the use thereof, or by instructions as to the proper manner of using the same, and as to the power, capacity and tendencies thereof; that the appellee was wholly unacquainted with the power, strength and capacity of said machinery and the tendencies thereof, and with the proper manner of safely operating the same, and with the manner in which to do the work properly and safely with said machinery and devices, and with the power and capacity and tendencies of said machinery and appliances, which facts were to the appellant well known; that to perform the work without great hazard and danger to the appellee required that a person in the place where he was so ordered and directed to work be experienced in the work and in the manner of doing it, or be fully instructed how safely to do the work, and also be apprised of said danger and fully instructed how to avoid it--all of which was well known to the appellant and wholly unknown to the appellee at that time; that at the same time he was wholly without experience in the work, he had never before performed the same or similar work, and was wholly unacquainted with and had no knowledge of the danger and hazard attending the work or the means or ways of escaping the same, and had no notice or knowledge that his said position was one of great danger--of all of which facts appellant then and there had full notice and...