Ft. Wayne Iron & Steel Company v. Parsell

• Decision Date: 14 December 1906
• Docket Number: 20,846
• Court: Indiana Supreme Court
• Parties: Ft. Wayne Iron & Steel Company v. Parsell

79 N.E. 439

168 Ind. 223

Ft. Wayne Iron & Steel Company v. Parsell

No. 20,846

Supreme Court of Indiana

December 14, 1906

Rehearing Denied February 27, 1907.

From Dekalb Circuit Court; Emmet A. Bratton, Judge.

Action by James R. Parsell against the Ft. Wayne Iron & Steel Company. From a judgment on a verdict for plaintiff for $ 2,500, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

Elmer E. Stevenson and Zollars & Zollars, for appellant.

Chapin & Denny, T. R. Marshall and D. M. Link, for appellee.

OPINION

Montgomery, C. J.

Appellee commenced this action to recover damages for a personal injury alleged to have been negligently inflicted upon him while in appellant's employ.

The complaint, omitting the formal parts, was as follows "That on March 15, 1904, the plaintiff was in the employ of the defendant as a laborer at its plant aforesaid in loading cars for the defendant; that defendant had as a part of its plant three large upright steam boilers which it used in its business, and each of which, near its lower end, was connected with an upright pipe extending down below the boiler and connecting with a horizontal mud pipe through which, by means of steam in the boiler, the mud and sediment in the boiler could be forced out down through the upright connecting pipe into the mud pipe and the boiler thereby cleansed; that in each of the upright connecting pipes aforesaid means should have been provided by which all communication of the interior of the boiler with the mud pipe could have been securely closed; that at the lower end thereof each boiler was provided with a manhole and cover, through which manhole a person could enter the boiler. And plaintiff further says that on the day aforesaid Harry Green, a master mechanic and superintendent of the defendant, in charge of said plant and the boilers aforesaid, ordered the plaintiff to leave his work of loading the cars and to enter through the manhole into one of said boilers and scrape out the sediment and scales therein, which remained after the boiler had been blown out; that said Green had the authority, then and there acting for and in the place of the defendant, to direct the plaintiff to perform such service, and which it was his duty to obey. And plaintiff further says that, in obedience to said order, he entered the boiler through the manhole and proceeded to perform such service, without knowledge of the hazard thereof. He further says it was the duty of defendant, while he was in the same, to close and keep securely closed all communication of the other boilers with the boiler in which he was at work, and to protect him from danger, but, instead of so doing, and while he was at work therein, the defendant, by its officers and employes, carelessly and negligently, without any notice to plaintiff, forced the hot water and steam out of one of the boilers into the mud pipe below, without keeping the connecting pipe of the boiler in which plaintiff was working securely closed, with such force and in such quantities that said hot water and steam entered through the upright pipe into the boiler in which plaintiff was at work, and before he could escape he was dangerously and severely scalded and burned, by reason of which he became wounded, sick and sore, and suffered and still suffers great pain therefrom, and has been wholly disabled from the time of receiving said injury to the present from performing any labor whatever, and he was confined to his bed for over three months. And he further says that some of his wounds do not heal, and that one arm and one hand are crippled, and that he will never again regain the free use thereof; that the scars of the wounds which he so received disfigure his person and are tender and subject him to annoyance and discomfort. He further says that he was obliged to employ and did employ a surgeon and nurses to attend him while confined to his bed and room, and that he has incurred great expense by reason thereof. And plaintiff avers that defendant was further careless and negligent in this, to wit: That it did not provide means by which the entrance of steam and hot water into the boiler while plaintiff was at work therein could be securely excluded, which defect was not obvious or known to plaintiff, but which was known, or should have been known, by defendant; that it failed to notify plaintiff before he entered said boiler of the danger to be incurred by the sudden entrance of steam and hot water while he was therein; that it did not endeavor to shut off and exclude the steam and hot water from said boiler while plaintiff was therein; that it failed to give plaintiff any notice of its purpose to turn the hot water and steam into the mud pipe. Plaintiff says that he never before had been employed in such service and was wholly unaware of any danger in performing the same, and trusted and relied upon the defendant to protect him while discharging his duty, and that his said injuries were occasioned by the sole negligence aforesaid of defendant and its officers, and that he has been damaged in the premises in the sum of $ 5,000, for which he demands judgment."

Appellant's demurrer to the complaint, on the ground that it did not contain facts sufficient to constitute a cause of action, was overruled, and this ruling is the first alleged error assigned.

The allegation is made that appellee was at work at the time of receiving his injury in obedience to the order of Harry Green, duly authorized in that behalf, and which order it was his duty to obey, but it is not charged that his injury was caused by the negligence of said Green, and it is therefore clear that no cause of action is stated under the second subdivision of section one of the employers' liability act. Acts 1893, p. 294, § 7083 Burns 1901. And see Louisville, etc., R. Co. v. Wagner (1899) 153 Ind. 420, 53 N.E. 927; Whitcomb v. Standard Oil Co. (1899), 153 Ind. 513, 55 N.E. 440; Muncie Pulp...