Holcomb v. Norman

• Court: Indiana Appellate Court
• Writing for the Court: RABB, P. J.
• Citation: Holcomb v. Norman, 47 Ind.App. 87, 91 N.E. 625 (Ind. App. 1910)
• Decision Date: 27 April 1910
• Docket Number: 6,946
• Parties: HOLCOMB v. NORMAN, BY NEXT FRIEND

91 N.E. 625

47 Ind.App. 87

HOLCOMB v. NORMAN, BY NEXT FRIEND

No. 6,946

Court of Appeals of Indiana

April 27, 1910

Rehearing denied June 21, 1910. Transfer denied February 3 1911.

From Superior Court of Marion County (73,418); John L. McMaster Judge.

Action by Charles E. Norman, by his next friend, against J. Irving Holcomb. From a judgment on a verdict for $ 4,000 for plaintiff, defendant appeals. (For decision on motion for writ of certiorari, see 43 Ind.App. 506.).

Affirmed.

James Bingham, for appellant.

Emrick & Deupree and B. F. Watson, for appellee.

RABB, P. J. Comstock, J., concurs. HADLEY, J., concurs. Myers, C. J., Watson and Roby, JJ., concur.

OPINION

RABB, P. J.

This was an action by appellee against appellant to recover damages for personal injuries claimed to have been caused by appellant's negligence. The assignment of errors and appellant's brief call in question the sufficiency of each paragraph of the complaint, the action of the court in overruling appellant's motion for a judgment in his favor on the answers to interrogatories, the giving of certain instructions, and the sufficiency of the evidence to sustain the verdict.

The first paragraph of the complaint is based on the alleged violation of the factory act, in failing to guard a saw used in a manufacturing plant. Its averments are that on March 12, 1907, defendant was engaged in the business of manufacturing brushes in the city of Indianapolis, and in such business operated by steam-power all necessary machinery, and among other machines kept and used a circular saw twelve inches in diameter, which was set in a table and revolved in a groove in the top of the table, so that about four inches of the saw protruded above the top of the table and was so connected by mechanical devices with the steam-power that when in use it revolved with great rapidity, and was used for the purpose of sawing and ripping timber; that it was necessary for those using the saw to lay the piece of timber to be sawed on top of the table and guide it with the hand against the saw; that it was necessary, to the safe operation of the saw, that the exposed parts of it extending above the table should be protected by a guard that would keep the hands and arms of the operator from coming in contact with the saw, and that such guard could have been maintained without impairing the utility of the saw; that defendant failed to provide such guard; that at the time plaintiff was injured he was operating said saw without such guard; that at said time he was seventeen years of age, and engaged in defendant's service as a laborer; that his duty as defendant's employe required him, when called on by defendant's foreman, to use said saw in sawing timber; that on said date he was directed by said foreman to use said saw, and while he was so engaged, and in the exercise of reasonable care to avoid injury, his hand was jerked and drawn against the unguarded saw and injured; that such injury was caused by the failure of defendant properly to guard the saw.

This paragraph of the complaint is criticised as not showing by direct averment that the saw which caused the injury complained of was operated in a "manufacturing establishment within this State," so as to place it within the terms of the statute requiring such saws to be guarded, and that it is not directly averred that appellee was engaged at work in a "manufacturing establishment," owned and operated by appellant at the time the injury complained of was received.

Appellant argues that it is only by inference, intendment and conjecture that these essential facts can be gathered from the pleading in question, and that the court can take nothing by intendment or inference in support of a pleading, and numerous authorities are cited to sustain this general proposition. It is a well-settled, general rule that the court, in construing pleadings, will not indulge in inferences to supply essential facts, but it is equally well settled that this general rule is subject to the qualification that the averment of a given fact in a pleading carries with it into the pleading all facts that are necessarily to be inferred from the fact alleged. Byard v. Harkrider (1886), 108 Ind. 376, 9 N.E. 294; Douthit v. Mohr (1888), 116 Ind. 482, 18 N.E. 449; Malott v. Sample (1905), 164 Ind. 645, 74 N.E. 245; Evansville, etc., R. Co. v. Darting (1893), 6 Ind.App. 375; Evansville Hoop, etc., Co. v. Bailey (1909), 43 Ind.App. 153, 84 N.E. 549.

The statutory rule governing the subject of pleadings provides that the complaint shall contain "a statement of the facts constituting the cause of action, in plain and concise language, * * * in such manner as to enable a person of common understanding to know what is intended." § 343 Burns 1908, § 338 R. S. 1881. Here the direct averment in the complaint, that at the time plaintiff was injured defendant was engaged in the business of manufacturing brushes in the city of Indianapolis, Indiana, carried with it the necessary inference that he was the owner of and operated a manufacturing establishment in this State for such purpose, within the plain meaning of the statute invoked. And the further averment that in the manufacture of brushes defendant kept and operated by steam-power certain machinery, among which was a circular saw, carried with it the necessary inference that such saw was used in such manufacturing establishment. And it is directly averred that in the performance of the duties of his employment plaintiff was injured by this saw, while at work with it. There is no reason why a person of common understanding could not know from the language of the complaint that the pleader meant and intended to charge every essential fact to make out a case against defendant for a violation of the provisions of the factory act. The paragraph of complaint in question is not amenable to the objections urged against it.

The second paragraph of complaint is based on the common-law liability of a master for negligence in failing to instruct a young and inexperienced employe who was set to work at a dangerous machine, and who, by reason of his inexperience and lack of knowledge of the proper manner of operating the machine suffered an injury.

The averments of this paragraph, after setting out the facts with reference to the business in which defendant was engaged, and describing the machine with which the business was carried on, as contained in the first paragraph of the complaint, are as follows: That on the day mentioned, and for some months prior thereto, plaintiff was in the employ of defendant as a laborer about said plant that he was at that time but seventeen years of age; that he was inexperienced in mechanical labor and in the use, construction and operation of machinery, and was incompetent to do the work incident thereto, all of which was known to defendant at the time of and during plaintiff's employment. It is averred that among other machinery kept and operated by defendant was a circular saw, set in a table and revolving in a groove in the top of said table, in such manner that the saw extended above the top of the table, and was connected with steam-power, and when in use resolved with great rapidity, and was of such a dangerous character that it required a well-instructed, skilful and competent sawyer to have charge of and operate the saw, in order safely to perform said work, without injury to himself; that the saw, when being operated, was at all times dangerous to an uninstructed, incompetent and unskilled sawyer, and one inexperienced in the use of machinery, all of which things were well known to defendant; that plaintiff did not know how to operate said saw properly, and was incompetent and unfit to be put at such work, and that there was great danger to him by reason of his inexperience and youth, all of which defendant knew, and that he and his said foreman did not on any occasion instruct or direct plaintiff how to use and operate said saw, and did not at any time warn or tell him of the danger to him in operating said saw; that on said March 12, plaintiff was directed by defendant's foreman to use said saw to rip pieces of timber for the use of defendant in its said business; that the operation of said saw by plaintiff was dangerous to him as aforesaid, as he had never been instructed by defendant or his said foreman how to use said saw properly, and was not so instructed at any time, but on said occasion was put to work at said saw without any proper instruction, and that he did not know how to use said saw properly, and that he did not understand and appreciate the danger...