Guedelhofer v. Ernsting

• Decision Date: 01 November 1899
• Docket Number: 2,698
• Citation: 55 N.E. 113,23 Ind.App. 188
• Parties: GUEDELHOFER v. ERNSTING
• Court: Indiana Appellate Court

55 N.E. 113

23 Ind.App. 188

GUEDELHOFER v. ERNSTING

No. 2,698

Court of Appeals of Indiana

November 1, 1899

From the Marion Superior Court.

Reversed.

W. A Ketcham, S. N. Chambers, S. O. Pickens, C. W. Moores and F E. Matson, for appellant.

D. W Howe, J. R. Morgan and L. A. Morgan, for appellee.

OPINION

WILEY, J.

This was an action by appellee against appellant to recover damages for an injury received, while in the employment of appellant, caused by the alleged negligence of the latter. The complaint, which is in one paragraph, avers that appellant owned and operated a factory, and was engaged in manufacturing and repairing wagons and other vehicles; that in carrying on said business, appellant had and used machinery of various kinds, which was propelled by steam; that a part of such machinery consisted of a jointer, constructed with an iron or steel top or table, about six feet long and about one foot wide, in the center of which was an opening about one foot in length and four inches wide; that immediately under said opening were revolving knives, so placed as to come in contact with lumber placed upon such table; that said jointer was operated by steam power communicated by wheels, pulleys, and other mechanical devices, so as to cause said knives to revolve with great rapidity; that the mode or plan of using said jointer was to place lumber on the table and push it along by hand and thus plane or cut it down to smaller dimensions; that when the jointer was in operation there was danger to the person operating it of his hand slipping from the lumber being pushed over said opening and falling upon the revolving knives; that said danger was very greatly increased in proportion as the piece of lumber was short, narrow, and thin, and because of the fact that a short, thin, and light piece of lumber was more violently jostled and more unsteady in passing over the knives than a thick and heavy piece would be, but that such danger was not obvious to any one who was not accustomed to the use and operation of the same; that there were no guards or apparatus or contrivance used in or about such jointer to prevent or guard against danger to the person operating it in case his hand should accidentally slip off the lumber being planed, and into said opening; that appellant well knew the danger incident to the operation of said jointer, and might easily have prevented or guarded against the same by attaching guards which could have been attached at an expense of fifty cents; that appellee was employed by appellant, some time prior to the accident hereinafter described, to work in and about said factory; that appellee was then about twenty-one years of age, and had never been familiar with operating machinery of any kind, and had had no experience in the operation of jointers or other similar machinery, nor any knowledge of the danger thereto, all of which appellant well knew; that on December 10, 1895, while appellee was so employed, he was directed by appellant to take some pieces of timber and plane them upon said jointer; that said pieces were about twelve inches long and not over one and one-half inches square; that they were very greasy and slippery; that there was great danger to the workman who might undertake to plane them, but of such danger appellee had no knowledge or experience whatever; that appellant, well knowing said danger and appellee's ignorance thereof, nevertheless negligently failed to guard against the same in any way, and negligently failed to advise appellee thereof, or instruct him how to operate the jointer in such a way as to prevent or lessen such danger; that appellee, in pursuance to such directions, undertook to plane one of the pieces, and while so doing, and using due care, his hand, by reason of the jostling and unsteadiness of such piece of lumber in passing over the revolving knives and the "slipperiness" thereof, slipped from the same and into said opening and came in contact with the revolving knives, whereby he was injured, etc. The complaint concludes by averring that appellee's injuries were caused solely by the negligence of appellant, and without any fault or negligence on his part. A demurrer for want of facts was overruled, and appellant excepted.

The issues were joined by an answer in general denial, trial by jury resulting in a general verdict for appellee for $ 3,000, and with the general verdict the jury answered and returned certain interrogatories submitted to them. Appellant moved for judgment upon the answers to interrogatories and for a new trial, both of which motions were overruled. The overruling of the demurrer to the complaint, the overruling of the motion for judgment on the answers to interrogatories notwithstanding the general verdict, and the overruling of the motion for a new trial, are each assigned as errors.

The first question discussed by counsel is the overruling of appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict. We enter upon the discussion of this question, with the rule in view, that the general verdict is a finding in favor of appellee, and against the appellant, upon every material fact necessary to the former's right to recover under the averments of his complaint, and that, unless some facts established by the special findings are in irreconcilable conflict with a fact material and necessary to the appellee's recovery, the general verdict must prevail. We must indulge every reasonable presumption in favor of the general verdict. Rogers v. City of Bloomington, 22 Ind.App. 601, 52 N.E. 242, and authorities there cited. Where, however, the interrogatories propounded to the jury, answered by them and returned with the general verdict, are in irreconcilable conflict with it, the former will control. In other words, the general verdict will be upheld unless the facts found and stated in the special findings are so antagonistic to the general verdict as to preclude reconciliation. Ohio, etc., R. Co. v. Trowbridge, 126 Ind. 391, 26 N.E. 64; Toledo, etc., R. Co. v. Adams, 131 Ind. 38, 30 N.E. 794; Town of Poseyville v. Lewis, 126 Ind. 80, 25 N.E. 593; Rogers v. Leyden, 127 Ind. 50, 26 N.E. 210; Block v. Haseltine, 3 Ind.App. 491, 29 N.E. 937; Evansville, etc., R. Co. v. Gilmore, 1 Ind.App. 468, 27 N.E. 992; Rogers v. City of Bloomington, supra.

In Korrady v. Lake Shore, etc., R. Co., 131 Ind. 261, 29 N.E. 1069, Elliott, C. J., in delivering the opinion of the court, says: "Where the facts stated in an answer to an interrogatory are such as preclude a recovery, the court must so adjudge, although answers upon other points may be favorable to the party who relies upon the general verdict. If facts are found which are fatal to a recovery, the court is bound to deny the plaintiff a judgment, whether such facts relate to one or to many points. A defendant who establishes a point which completely and effectually destroys the alleged cause of action must necessarily succeed." See, also, Rice v. City of Evansville, 108 Ind. 7, 9 N.E. 139; Lake Shore, etc., R. Co. v. Pinchin, 112 Ind. 592, 13 N.E. 677.

We turn now to the facts specially found to see if they, or any of them, are in irreconcilable conflict with the general verdict, and they are as follows: That appellee was twenty-one years old; that he had four or five years experience in working in hard wood such as used by appellant in his factory, such work having been done with hand tools that his eyesight was good; that appellee commenced working for appellant in his factory September 1, 1895; that he received the injury complained of December 10, 1895; that his employment was continuous between said dates; that the jointer described in the complaint was in use when appellee commenced work for appellant; that it was continued in use all the time up to appellee's injury; that the jointer was the same as was in general use in planing mills and other woodworking establishments in Indianapolis; that the jointer was constructed with an iron or steel top or table about six feet long and eight inches in width, across the center of which was an opening two and one-quarter inches wide, beneath which opening were revolving knives, so placed as to come in contact with timber placed on the table; that the jointer was used by the workmen by putting the knives in motion, placing the timber to be planed on top of the table, and then pushing the timber with the hands upon and over the knives in the opposite direction to their movement; that, in using the jointer, the workmen would stand in front of the table and near the opening in which the knives revolved; that while appellee was in the employment of appellant there was an adjustable gauge or guide attached to the top of the table; that there were slots and set screws at the back of such gauge by which it could be moved backward or forward so as to cover the whole length of the revolving knives, except that portion being used to plane with, and corresponding with the piece of timber being planed; that such gauge was four or five inches high and about two and one-half to three feet long; that the top of the table was about three feet high from the floor; that the adjustable gauge and the slots and screws for its adjustment were open to the view of the workmen when standing in front of the top of the jointer while operating it; that such gauge could be moved by the workmen from the back to the front so as to shut off from the workmen all of the portion of the revolving knives not needed in planing a piece of timber; that there was no other guard or contrivance on or about the jointer to prevent or guard against danger; that the jointer remained in the same condition during all the time appellee worked for appellant; ...