Green v. American Car & Foundry Company

• Decision Date: 10 June 1904
• Docket Number: 20,338
• Citation: 71 N.E. 268,163 Ind. 135
• Parties: Green v. American Car & Foundry Company
• Court: Indiana Supreme Court

71 N.E. 268

163 Ind. 135

Green v. American Car & Foundry Company

No. 20,338

Supreme Court of Indiana

June 10, 1904

From Clark Circuit Court; J. K. Marsh, Judge.

Action by McCallin Green against the American Car & Foundry Company. General verdict for plaintiff for $ 525, together with answers to interrogatories. Defendant's motion for judgment non obstante veredicto sustained. Plaintiff appeals. Transferred from the Appellate Court under § 1337u Burns 1901.

Reversed.

G. H Voigt, for appellant.

M. Z Stannard, for appellee.

OPINION

Hadley, J.

Appellant sued the appellee to recover damages for personal injuries alleged to have been received by the negligence of the latter. Appellee is engaged in the manufacture of freight and passenger-cars, and, among many other machines and appliances, has a device for crushing old car wheels preparatory to melting and remoulding, which device, or machine, is constructed as follows: There are four upright heavy timber posts set in a square of ten feet, twenty-five feet high, slightly inclined to the center point at the top. At the top is constructed a heavy frame of wood and iron, upon which is a heavy pulley and certain wheels, connected with chains and ropes, one of the latter, and which passes over the pulley, is attached to a 1,500-pound steel hammer, resting upon the center of the floor within said posts, and another is attached to a machine on the floor, and receives from it compressed air power, which propels the wheel and pulley at the top of said posts, and which, in turn, lifts the hammer to the top of the structure. Then, after a car wheel has been placed on the floor immediately under the hammer, the latter is disengaged, by jerking a rope, and let fall with great force upon the wheel, breaking and crushing the same. To prevent fragments of the broken wheel from being thrown off and about the building, the company had constructed about the bottom, of heavy boards, and from post to post, a guard or incasement eight feet high, but had not covered any part of the top, although it might have covered it fully except three feet square in the center for passage of the hammer without impairing the operating convenience or utility of the machine or device. In operating the drop, pieces of the broken wheel weighing from four to five pounds would now and then be thrown out over the top of the incasement to a distance of fifteen to twenty-five feet beyond. The plaintiff had been in the employ of the company for more than a year, had frequently operated the drop, and for several months had known that it was liable to throw dangerous fragments of iron over the top of the incasement. He had also previously called the foreman's attention to the danger from the open top. On August 20, 1902, while the plaintiff was engaged in operating said machine, and having released the elevated hammer by jerking a rope, and while standing in the proper place for doing it, a heavy piece of iron was hurled out over the top of the incasement, which, in descending, struck the plaintiff on the head, inflicting the injuries of which he complains.

All the foregoing facts are alleged in the complaint, and the negligence charged in the first paragraph is the failure to put a top on the guard or incasement, and in the second paragraph, the failure to construct the incasement high enough. Answer, the general denial. Trial by jury, and with the general verdict for appellant the jury returned answers to interrogatories. The court sustained appellee's motion for judgment on the special findings, and the correctness of this ruling is the only question for decision.

The facts specially found by the jury, are these: When the descending hammer struck a car wheel, broken pieces thereof, weighing four or five pounds, sometimes flew out over the top of the casing to a distance of fifteen to twenty-five feet. The plaintiff had for several months assisted in operating the drop, and knew that the incasement was not covered, and that the hammer was liable to throw out over the top such pieces of iron as caused his injury, and, some time before he was hurt, informed the foreman that it was dangerous to operate the machine without a cover over the top. The sum of these things is that the falling drop was liable to cast harmful pieces of iron over the top of the protecting walls, and appellant continued in the employment after he had notice of the danger.

Appellant contends that the court erred in holding that these special facts overthrew the general verdict, which was in his favor for two reasons: (1) Because a continuance in the employment after notice of the danger was not contributory negligence, if an ordinarily prudent person, in his place, would have done the same thing, and that being a question of fact, was determined by the jury in his favor; and (2) the doctrine of...