Haskell and Barker Car Company v. Kay

• Citation: 119 N.E. 811,69 Ind.App. 545
• Decision Date: 29 May 1918
• Docket Number: 10,121
• Parties: HASKELL AND BARKER CAR COMPANY v. KAY
• Court: Court of Appeals of Indiana

119 N.E. 811

69 Ind.App. 545

HASKELL AND BARKER CAR COMPANY v. KAY

No. 10,121

Court of Appeals of Indiana

May 29, 1918

Rehearing denied November 26, 1918.

Transfer denied March 7, 1919.

From the Industrial Board of Indiana.

Proceedings for compensation under the Workmen's Compensation Act by Lena Kay against the Haskell and Barker Car Company. From an award for applicant, the defendant appeals.

Affirmed.

Collins & Collins, for appellant.

CALDWELL C. J. Ibach and Dausman, JJ., dissent. Dausman, J., concurs.

OPINION

CALDWELL, C. J.

The Industrial Board awarded appellee compensation as the dependent widow of her deceased husband, Charles Kay, appellant's employe. At the hearing before the full board the parties stipulated to the record an agreement in part to the effect that on September 8, 1916, decedent received a personal injury by accident arising out of and in the course of his employment, resulting in his death on that day. The sole question presented for our determination is whether it must be said from the evidence that decedent's injury, and consequently his death, was due to his own wilful misconduct within the meaning of the Workmen's Compensation Act. Acts 1915 p. 392, § 8020l et seq. Burns' Supp. 1918.

The evidence bearing on this question was to the following effect: Decedent had been in appellant's employ, performing service in and about its car factory for more than forty years. He was a man of fair intelligence, and of good character and habits. He was not a machinist. At the time of his injury he was operating a power drilling machine used to drill holes in pieces of iron of various sizes and lengths. He had had several years' experience, all told, in operating such a machine. The drill bits were of twist variety, something like an auger. In operating this machine there was danger that at certain stages of the work the piece of iron into which holes were being drilled would run up on the stem of the drill, unless restrained, and fly or whirl around with the drill in its revolutions, and thus imperil the operator. It seems to be conceded that in this manner decedent met with his fatal injury. At the time of his injury he was drilling holes in certain pieces of iron about an inch thick, three inches wide and two feet long, weighing from twelve to fifteen pounds, to be used as car levers when completed.

By reason of the danger of the pieces of iron climbing the stem and whirling around while being drilled as above indicated, the company had designed two forms of safety device for use in the plant. One of these, known as a clamp, consisted of a flat piece of iron bent to consist of two horizontal plates extending in opposite directions from a perpendicular plate connecting them. When this form of safety device was in use it was fastened to the base of the machine by means of a bolt through the one horizontal plate held secure by means of a nut. The work being drilled rested on the base against the perpendicular plate, while the other horizontal plate extended or clamped over it. Thus the work being drilled was prevented from either whirling or climbing the stem. The other form of safety device, known as a strap, consisted of a perpendicular plate of iron bolted to the base of the machine against which the work being drilled rested, and thus was prevented from whirling. The clamp was used for some kinds of work, and the strap for other kinds. The workmen at times, and apparently on their own motion, used a third form, known as a plug. It was merely a bolt with a sort of hook on the upper end of it, which the workman inserted in a hole in the base, and which extended about four inches above it. It prevented whirling, but not climbing. Each of these safety devices was readily adjusted to the base or detached therefrom, the clamp, however, requiring more time than the others. It is apparent that the clamp when it could be used was the most effective form of device. The others prevented whirling except in case of climbing. The plug was safe for some kinds of work, and was safe for the kind of work Kay was doing when hurt, unless the work should climb the stem, as it apparently did on the occasion involved here. The workmen in appellant's plant, including Kay, were paid by the piece, and there was evidence that they sometimes used the plug instead of the clamp on account of the time saved in making the attachment. Shortly before Kay was hurt he was drilling work that did not require the use of the clamp. The foreman requested him to drill the pieces of iron above mentioned, four in number. In doing the work he used a plug. The evidence was to the effect that he should have used a clamp in order that the work might be safely done.

The evidence bearing on the question whether appellant required the workmen to use any certain form of safety device for any certain kind of work, or whether there was any definite rule or order on that subject, or whether the matter was left to the judgment and discretion of the workmen, and what Kay knew respecting these questions, must be determined from a consideration of the testimony of the foreman. The following questions and answers fairly reflect the record bearing on those subjects: Being asked whether he had ever instructed Kay about the use of the guard, the foreman answered: "Why, whenever I caught him drilling anything where there was any danger of flying around, I would give him the 'dickens,' and I have told him time and time again never to do any work without putting on their guards where there was any danger of their work flying around. Q. Now, was it customary to use the clamps or those guards? A. Why certainly it was customary to use them on any work where there was any danger of the work flying around the drill catching or throwing around. Q. At any time? A. At any time at any kind of work. Q. At any time did you ever observe he was not using the clamps, would you--what would you do? A. I would give him the dickens, give him a talking to, and make him put them on. Q. Did Charley know what the clamps were for? A. Why to be sure he did. He used them time and time again. He used them whenever they were drilling levers. Q. Did Mr. Kay, the decedent, know what the purpose of these clamps were? A. Yes, sir. Q. Did you ever tell him not to do the work unless the clamps were on? A. I have instructed them, not only Mr. Kay, but all of the drillers I have had under me to never do any kind of work where there was any danger of the piece flying around without having clamps on. Q. Do you remember of ever seeing Charley Kay or any other man in your shop doing the same drilling as this without the use of clamps? A. I have caught them at it, and I have made them stop their machines and put the clamps on. Q. Do you recall of ever requiring them to stop? A. I always told them to stop when I saw them that they did not have the clamps on, and so they could put their clamps on to make it safe. Q. Now, Jake, are these machines intended to be operated--are these pieces intended to be drilled without the clamps on them? A. No, sir. Q. Did Charley Kay know that? A. Certainly. Q. And that plug, in your judgment, would not it be safe to stop that handle from going around? A. Ordinarily it should be. Q. Just as good as that clamp? A. No, it is not just as good as that clamp * * *. Q. Jake, you have seen these men use these small plugs? A. Yes. Q. You have never forbid them using those plugs? A. Yes, sir. Q. Did Charley Kay ever tell you he would not use a safety device? A. No, sir. Q. Did you ever tell Charley Kay to use one and he refuse to do it? A. No, sir. Q. Did you ever see Charles Kay or any other man working there without a clamp when they should have used a clamp? A. Yes, sir, I have. Q. Without reprimanding or without scolding them? Q. Well, I would generally give them a scolding if I saw them, and told them to put on their clamp. Q. But that plug is a safety, isn't it. A. It is in one sense of the word. Q. And those plugs are very safe for some classes of work? A. They are for some. Q. Well, they use plugs on all kinds of work, don't they? A. Well, yes, I would not say on all kinds, but they have to use them. Q. When you are drilling the kind of a lever that Charley was drilling, is a plug a safe instrument for all purposes? A. I should have the clamp on."

A few minutes after the accident, the foreman came to Kay's machine and found him sitting down, bent over, with indications that he had been hurt. He asked Kay what was the matter, and the latter said the lever swung around and hit him. The foreman, having examined the situation and appearance of the machine and the work, asked Kay how it was possible for the lever to swing around, and declared that he did not think that the lever could swing around the way it was situated on the machine. At this time the foreman discovered that Kay had been using a plug in place of a clamp, but there was no evidence that this subject was at that time discussed by them, or that anything was said on the subject of a plug being used rather than a clamp.

Section 8 of the Workmen's Compensation Act, supra, is in part as follows: "No compensation shall be allowed for injury or death due to the employe's wilful misconduct, including * * * wilful failure or refusal to use a safety appliance * * *. The burden of proof shall be on the defendant employer."

Under this statute, to defeat appellee's claim for compensation, it was incumbent on appellant to establish affirmatively that decedent should have used a clamp instead of a plug, and that his failure to do so amounted to wilfulness within the meaning of the statute.

Two safety appliances are involved here: The clamp and the plug. The latter was used; the former was not used. The...