Holcomb v. Norman

• Decision Date: 27 April 1910
• Docket Number: No. 6,946.,6,946.
• Citation: 47 Ind.App. 87,91 N.E. 625
• Parties: HOLCOMB v. NORMAN.
• Court: Indiana Appellate Court

47 Ind.App. 87

91 N.E. 625

HOLCOMB

v.NORMAN.

No. 6,946.¹

Appellate Court of Indiana, Division No. 2.

April 27, 1910.

Appeal from Superior Court, Marion County; John L. McMaster, Judge.

Action by Charles E. Norman, by next friend, against J. Irving Holcomb. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 43 Ind. App. 506, 87 N. E. 1057.James Bingham, for appellant. Emrick & Deupree, for appellee.

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 returned by the jury to interrogatories submitted to them, the giving of certain instructions to the jury, 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 substantial averments are: That on the 12th day of March, 1907, the appellant was engaged in the business of manufacturing brushes in the city of Indianapolis, and in the business kept and operated by steam power all necessary machinery, and among other machines, kept and used a circular saw 12 inches in diameter which was set in a table and revolved in a groove in the top of the table, so that about 4 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 use 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 the same 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 hand and arm of the operator from coming in contact with the saw; that such guard could have been maintained without impairing the utility and operation of the saw; that the defendant failed to provide such guard; that at the time appellee was injured he was operating said saw without such guard; that at said time appellee was 17 years of age, and engaged in appellant's service as a laborer; that his duty as appellant's employé required him, when called on by appellant's foreman, to use said saw in sawing timber; that on said date he was directed by appellant's foreman to use said saw; that while he was so engaged in using the same, 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 appellant to properly guard the saw. This paragraph of the complaint is criticized as not showing by direct averment that the saw which caused the injury complained of was operated in a “manufacturing establishment within the 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 this 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, 108 Ind. 376, 9 N. E. 294;Douthit v. Mohr, 116 Ind. 482, 18 N. E. 449;Malott v. Sample, 164 Ind. 645, 74 N. E. 245;Evansville, etc., v. Darting, 6 Ind. App. 375, 33 N. E. 636;Evansville, etc., v. Bailey, 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.” Here the direct averment in the complaint that at the time of the appellee's injury the appellant was engaged in the business of manufacturing brushes in the city of Indianapolis, Ind., carried with it the necessary inference that he was the owner of, and operating, 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 appellant kept and operated by steam power 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 appellee was injured by this saw, while at work with it. There is no room for a person of common understanding not to have known from the language of the complaint that the pleader meant and intended to charge every essential fact to make out a case against appellant for 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 appellant's complaint is based on the common-law liability of a master for negligence in failing to instruct a young and inexperienced employé, who is set to work at dangerous machines, and who by reason of his inexperience and lack of knowledge of the proper manner to operate the machine suffers an injury. The substantial averments of this paragraph of the complaint, after setting out the facts with reference to the business in which the appellant 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, the appellee was in the employ of the appellant as a laborer about said plant; that he was at that time but 17 years of age; that he was inexperienced in mechanical labor, and in the use and construction and operation of machinery, and was incompetent to do the work incident thereto, all of which was known to the defendant at the time of his employment and during the time of his employment. It is averred that among other machinery kept and operated by the 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 revolved with great rapidity, and was of such dangerous character that it required a well instructed, skillful, and competent sawyer to have charge of and operate the saw, in order to safely perform said work, without injury to himself, and that the saw when being so 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 the defendant; that the appellee did not know how to properly operate said saw, 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 the appellant knew; that appellant and his said foreman did not on any occasion instruct or direct appellee how to use and...