Heltonville Manufacturing Company v. Fields

• Decision Date: 20 February 1894
• Docket Number: 16,620
• Citation: 36 N.E. 529,138 Ind. 58
• Parties: Heltonville Manufacturing Company et al. v. Fields
• Court: Indiana Supreme Court

36 N.E. 529

138 Ind. 58

Heltonville Manufacturing Company et al. v. Fields

No. 16,620

Supreme Court of Indiana

February 20, 1894

Leave Granted to Withdraw Petition for Rehearing May 10, 1894.

From the Lawrence Circuit Court.

Judgment affirmed.

B. K Elliott, W. F. Elliott and M. F. Dunn, for appellants.

W. H Martin and J. E. Boruff, for appellee.

OPINION

Hackney, J.

The appellee sued the appellants for personal injuries sustained while in the employment of the appellants, and from a swinging saw in appellant's lumber mill. The complaint was in two paragraphs, which differed in no material respect. The theory of the action was that the appellants negligently maintained said saw with worn and defective rigging, which broke and caused said saw to swing against the appellee without his negligence. It is alleged that the appellants knew of the defects, and that the appellee had no knowledge thereof, and could not observe the same because concealed behind and obstructed by the frame in which said saw was made to revolve.

In the presence of these allegations the complaint is sufficient to withstand the objection that the appellee had equal opportunity with the employer to have observed such defects the allegation of the employer's knowledge and the absence of appellee's knowledge includes actual and constructive or imputed knowledge. Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156, 33 N.E. 355.

As alleged in the complaint, the saw was set in a frame swinging from above, and in its use was pulled forward by the man in charge. When the timber was severed the operator released the frame and it was drawn backward and upward by a rope fastened to the frame and with a heavy weight attached. The saw, when pulled through the timber, operated in an opening in the top of a table. When the defective rope parted, the frame swung forward, and the revolving saw struck and maimed the appellee.

The complaint alleged that appellee's duty required him to be "almost directly in front of" the saw so operating. The appellants moved the court to require a more specific allegation as to where the appellee was required to stand when engaged in managing said saw. This the court denied, and much is said in appellant's brief of this ruling. The complaint did not involve the pulling of the saw upon the appellee, who may or may not have been standing in front of it in the performance of his duties. It is manifest that he stood in front of the opening in the table at the time the saw struck him, and, if he was justified in relying upon the proper repair of the rope, he was in a place where he had a right to be, and ordinary care would not require precision in estimating the distance at which he should stand when the saw was not in motion, and when he could reasonably suppose it to be securely held in place by the rope and weight. In the absence of knowledge, actual or imputed, the employe may rely on the performance of every duty owing by the master to his servants. Upon the theory of the complaint, it would not have been contributory negligence to have gone in front of the opening in the table, and more specific allegations could not have weakened the complaint, and were certainly not essential to advise the defense of the cause of action they were called upon to defend.

Complaint is made of the second and third instructions given by the court at the request of the appellee. They charge the duty of the master to supply reasonably safe places and machinery for the discharge of the servants' duties, the assumption, by the servant, of the ordinary hazards of his service, and the obligation of the master to use vigilance to protect his servants against unusual and extraordinary perils.

It is urged against these instructions that they are "one-sided, and utterly ignore the true principle governing the relationship existing between employer and employe;" that they "place the entire onus upon the master, and require no reciprocal duty of the servant."

We have quoted the argument of counsel, and feel constrained to suggest that it is too general and indefinite to give us that assistance desired, and we have been unable to discover substantial objections to either of such instructions. The obligations of the master, so charged, are thoroughly established and well recognized by the decisions of this court. Cincinnati, etc., R. W. Co. v. Roesch, 126 Ind. 445, 26 N.E. 171; Brazil, etc., Coal Co. v. Young, 117 Ind. 520, 20 N.E. 423; Indiana Car Co. v. Parker, 100 Ind. 181.

As one of the elements of damage for which recovery was proper, the court instructed the jury that they should consider "any temporary or permanent disability, either physical or mental, from which you find him suffering as the result of such injury." The appellants except to this instruction as including mental disability, such disability not being specially alleged as an element of damage. Any natural and direct consequence of an injury is not a matter of special damage, and recovery may be had therefor without special allegations. Wright v. Compton, 53 Ind. 337; Fisher v. Hamilton, 49 Ind. 341; Cox v. Vanderkleed, 21 Ind. 164; Taber v. Hutson, 5 Ind. 322; Morgan v. Kendall, 124 Ind. 454, 24 N.E. 143; Ohio, etc., R. R. Co. v. Hecht, 115 Ind. 443, 17 N.E. 297. Taking the language of the entire charge, we can not believe that the court intended, or that the jury understood the language above quoted to distinguish between mental suffering and an impaired mind, or insanity, and to apply the rule of recovery to the latter.

Of the instructions asked by the appellants two are as follows:

"5th. The law as to the master is that in the supplying of materials, appliances, and machinery, he is held to ordinary care, and if unavoidable accident, accidents growing out of hidden defects, or accidents or injuries arising out of the use of machinery where the means of knowledge as to the dangerous character and condition of such machinery are equal on both sides, that is to say, where the employe has equal knowledge with the master as to the condition and character of the machinery he operates, there can be no recovery by the servant."

"6th. If you find in this case that the defendant Chaplin exercised ordinary care in the construction of the swinging saw and frame in complaint mentioned, and you find that the plaintiff's knowledge of the danger in operating the same, and of the condition and character, was equal with defendant's knowledge, then you must find for defendant."

The first of these instructions was given, and the second was refused, and of such refusal the appellants complain. It is asserted that the proposition contained in the instruction numbered six is not included in any charge given by the court, but we think it so certain that instruction numbered five contains the same principle, stated with equal clearness and precision, that no more than the presentation of the two instructions is necessary.

Following the argument upon the instruction so refused, appellants' brief continues as follows: "With equal confidence, and without argument, because the instruction is its own best defender, we call attention to instruction number ten, which the court refused to give." It is a familiar rule of practice that questions not argued in this court are deemed to be waived. The burden of searching the record for evidence upon which to predicate the instruction, and of collecting the authorities to support the legal proposition contained in the instruction rests upon the appellants, and can not so easily be cast upon the court. The presumption of the correctness of the trial court's action prevails until the appellants demonstrate the error of such action. No error is suggested by this quotation from appellants' brief.

With the general verdict the jury returned special interrogatories and answers thereto, and upon such answers the appellants moved for judgment in their favor, notwithstanding said general verdict.

In argument, counsel submit two propositions, claimed to have been specially found, and to...