Gaar, Scott & Co. v. Wilson
| Decision Date | 27 October 1898 |
| Docket Number | 2,563 |
| Citation | 51 N.E. 502,21 Ind.App. 91 |
| Court | Indiana Appellate Court |
| Parties | GAAR, SCOTT & CO. v. WILSON |
From the Henry Circuit Court.
Reversed.
W. A Brown and Jackson & Starr, for appellant.
M. E Forkner and Charles S. Hernly, for appellee.
BLACK J. Comstock, J., took no part in this decision.
A demurrer to the appellee's complaint for want of sufficient facts was overruled. It was in substance shown by the complaint that the appellant was a corporation, etc.; that it had, at Richmond, Indiana, a manufacturing establishment in which it manufactured portable steam engines and other machines for the market; that it employed in this establishment a large number of employes who were engaged in the building of said engines, etc.; that the appellee entered into the employ of the appellant about five years before the bringing of this action, and as such employe he was, under the direction of the appellant, engaged in working upon said machines for the appellant; that in building its steam engines, "there is used in one of the rooms, under the charge of a superintendent, what is known as a shaft, or arbor, made of metal, which is several inches in diameter and about eight feet long and is circular; that the said shaft is used for the purpose of being placed in a certain position in an engine, when it is being constructed, for the purpose of having metal poured around it, in order to form what is known as boxing; that when said metal is poured and said boxing is formed and completed, the said shaft, or arbor, is removed by the employes of the defendant and is placed upright beside posts in the room where they are used; that upon said posts are attachments provided by the defendant for the purpose of holding the said shafts, or arbors, upright in position until they are again needed; that the said shafts, or arbors, are heavy; that when the said attachments for holding the same in position are in proper order and condition, the said shaft will not slip therefrom and fal;;" that on or about the 6th of April, 1896, the appellee was an employe of the appellant, and as such, under the direction of the appellant, was engaged in working upon an engine which the appellant was having constructed in its said machine shop, and it was a part of the duty of the appellee, while performing work aforesaid under the direction of the appellant, to take what is known as a chain, that is used in an engine, from a blacksmith shop of the appellant in its factory, "to where he was engaged in working upon said engine; that in doing so it was necessary for him, in the line of his duty, to pass near where one of these shafts, or arbors, was placed upright beside one of the posts and held by one of the attachments aforesaid upright in position; that in passing near the same, without any fault or negligence whatever upon the part of the plaintiff, the said shaft, or arbor, by reason of the attachment by which it was held upright as aforesaid being defective and out of order, as hereinafter stated, without the fault or negligence of plaintiff, slipped from said attachment and fell against" him and upon his right foot with great force, by which he was greatly injured, etc., the character and effect of the injury being stated, with his expense, etc.; that said injuries were received and sustained by him as aforesaid without any fault or negligence on his part.
It was further alleged, that the appellant had a foreman in charge of the room in which the arbor, or shaft, was at the time it fell upon his foot as aforesaid, whose duty it was to see that the same was placed in a proper and safe position, and to see and know that the attachment provided for holding the same upright as aforesaid was in proper repair and condition; that "the said attachments were not in proper condition, and would not safely hold the said shaft, or arbor, upright as required, of which facts plaintiff avers the defendant and his said foreman at all times had full notice and knowledge, but that said foreman and the said defendant knowingly permitted the said attachment to be and remain out of condition and out of proper repair, negligently and carelessly, and to be and remain in a condition to not securely hold said arbor, or shaft, and to permit the same to be liable at any time to fall and injure any one passing by or near the same; that he, the plaintiff, had no notice or knowledge of the unsafe condition of said attachments as aforesaid, or of the insecure position of said shaft as aforesaid, and was without fault in the premises;" that at the time the appellee was so injured, he was in the line of his duty and in the employ of the appellant as aforesaid, and was in a place where his duty required him to be, and that "he is now and was at all times and in all things hereinbefore stated wholly without fault or negligence." Wherefore, etc.
It is objected on behalf of the appellant that the complaint contains no charge that the appellant was guilty of negligence; that it does not show a causal connection between the appellant's negligence and the appellee's injury; and that it must be taken from the allegations of the pleading that the alleged defect in the attachment was patent, and that the injury received by the appellee was the result of a risk incident to his employment. It is averred in substance in the complaint that the appellee was injured by the falling of the arbor upon him, and that it so fell by reason of the attachment being defective and out of order as stated further on in the complaint, where it is alleged that the attachment was not in proper condition and would not safely hold the arbor upright and that the appellant had full notice and knowledge of these facts and knowingly permitted the attachment to be and remain out of condition and out of proper repair, negligently and carelessly, and to be and remain in a condition to not securely hold the arbor and to permit it to be liable at any time to fall and injure a person in the situation which was that in which the appellee was shown to have been when injured. When all the averments of the pleading are considered together, we may say that it shows negligence on the part of the appellant, and that a causal connection between the appellant's negligence and the appellee's injury sufficiently appears. We are also of the opinion that the further objection of the appellant, that the defect was shown to be patent and that the injury was the result of the risk assumed as an incident of the service, is not well taken. The defect is not particularly described. No objection is made to the plan of the device for holding the arbor in an upright position, or to the form, material, construction or situation of the attachments, but it is alleged that when the attachments were in proper order and condition, they properly performed the purpose for which they were used. There is nothing in the complaint from which it can be said that the defectiveness of the attachment in question, whereby the arbor was not properly secured, was so obvious as to be a patent defect. It might be well known to the appellant and yet unknown to the appellee without fault on his part. On the one hand, the employer has the right to expect that the employe will be vigilant for his own protection and careful to avoid injury from ordinary or known and obvious risks, yet on the other hand the employe has a right to presume that the employer has done his duty in using reasonable care to provide safe appliances, and to inspect them at proper times, and he is not obliged to search for defects or to exercise like diligence with the employer to discover defects. When the ordinary perils of the employment are increased by the use of defective appliances known to the employer, or for which he is responsible, and unknown to the employe, such increased perils cannot be regarded as assumed risks. If the risk by which the employe was injured be one assumed, there can be no recovery though he may have exercised ordinary care. It may be that notwithstanding the fact that the injured employe exercised reasonable diligence, or even the utmost care, and was free from fault, yet the injury was one incurred from a risk assumed by him, and therefore one for which there could be no recovery. It is in this State incumbent ordinarily upon the injured employe suing his employer for the injury to negative knowledge on the plaintiff's part of the want of safety or of the defective condition of the appliance by which he alleges his injuries were caused. Indiana, etc., R. Co. v. Dailey, 110 Ind. 75, 10 N.E. 631; Atlas Engine Works v. Randall, 100 Ind. 293, 50 Am. Rep. 798; Louisville, etc., R. Co. v. Corps, 124 Ind. 427, 24 N.E. 1046; Louisville, etc., R. Co. v. Sandford, 117 Ind. 265, 19 N.E. 770. But it is not needed that the complaint show affirmatively that the complaining employe had no means of ascertaining the defect; it is enough to aver that he had no knowledge of the defect. Ohio, etc., R. Co. v. Pearcy, 128 Ind. 197, 27 N.E. 479; Evansville, etc., R. Co. v. Duel, 134 Ind. 156, 33 N.E. 355. While the complaint is not wholly satisfactory in form, we think it sufficient.
A motion for a new trial was overruled. It is suggested for the appellee that the record does not properly show an exception to this ruling. In the journal entry of the action of the court upon this motion there is no statement of an exception but in the same entry it is stated that the appellant prayed an appeal to this court, which was granted, and that the appellant was given twenty days to file an appeal bond, and sixty days to file its bill of exceptions. In a bill of exceptions filed within the time granted it is stated that, on, etc., the appellant "filed its motion for...
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