OPINION
DAUSMAN, J.
This
action was instituted by appellee to recover damages for
personal injuries resulting from alleged negligence. The
cause was tried on the issue formed by the general denial
addressed to the first paragraph of amended complaint, a
demurrer to said paragraph having been overruled and all
other paragraphs of complaint having been withdrawn. Verdict
and judgment for appellee in the sum of $ 4,741.
The
errors assigned are: (1) The court erred in overruling the
demurrer to the first paragraph of amended complaint; (2) the
court erred in overruling appellant's motion for judgment
on the interrogatories and answers thereto; and (3) the court
erred in overruling appellant's motion for a new trial.
The
body of the said paragraph of complaint is as follows:
"That the defendant is now and was on the 1st day of
November, 1910, a duly organized and existing corporation,
and engaged in the manufacture and repair of railroad cars,
among other things, at Hammond, Indiana, and it was the owner
of a number of buildings in which it carried on said work or
business, and employed several hundred men therefor. That the
plaintiff, at the time of receiving the injury hereafter
mentioned, was married and thirty-one years of age, and was
strong, robust and in good health at the time of his injury
herein stated. That at the time of said injury the plaintiff
was in the employ of the defendant and was working in one of
the defendant's said buildings known as the blacksmith
shop in which was a certain iron shaft with pulleys, belts
and emery wheels which were operated, when used as hereafter
stated, by means of electric power, and all
of which were used as provided by the defendant in connection
with its said work; that in the center of each of said emery
wheels was a one-inch hole; that either of said emery wheels
when used as aforesaid, was placed over and attached, by
means of said hole, to either end of said shaft, which was
about twenty inches long, with threads and flange-burs on
each and to clasp and hold the wheel being used; that at the
center or middle of said shaft was a pulley connected by
means of a belt to another pulley, which was also attached to
a shaft; that said emery wheel shaft was attached to a
certain cast iron box about one foot high, one foot long and
one foot wide, with two of its sides at the top curved or
concaved, in which the pulley on said shaft revolved; that
said cast iron box rested upon and was attached by bolts to a
plank bench, or table, about two feet wide and four feet long
and the top thereof about three feet from the ground or
floor. That said emery wheels were provided and used by the
defendant to grind various kinds of iron, steel, and other
metal and revolved at great rapidity, about three thousand
revolutions per minute, when being used and operated as
aforesaid, and it was necessary for the person thus using one
of said emery wheels to stand immediately in front of it,
which revolved
towards him. That said emery wheels varied in thickness and
diameter to meet the requirements of said work and were kept
by the defendant in a particular case or on a shelf provided
therefor. That the person using one of said emery wheels was
required, and it was his duty, to select therefrom one with
which the particular work could be done, and place and
replace the same on said emery wheel shaft. That on the 1st
day of November, 1910, the plaintiff was
directed, ordered, required and permitted to grind a certain
cast iron car-truck slide, and undertook to grind and was
grinding the same, in the manner heretofore stated, with one
of said emery wheels provided and used by the defendant to do
that particular work and which was three-eighths of an inch
thick and fourteen inches in diameter, which was then and
there unguarded, open, exposed, and without guard and
protection, contrary to the laws of Indiana, relating to the
use of machinery in industrial establishments and providing
for the safety of laborers. That said unguarded and
unprotected emery wheels, when being used as aforesaid, were
dangerous to employes in said blacksmith shop, who were
required to work with and about them as defendant well knew
prior to the injury complained of herein. That said emery
wheels, when being used as aforesaid, could and should have
been guarded with a steel hood and guard to fit over the same
at small cost, and thereby made safe, without interfering
with the proper use thereof, which facts the defendant well
knew and could have known by the exercise of ordinary care.
That on said date, the plaintiff, while in the exercise of
due care and caution, grinding said slide as aforesaid, said
emery wheel broke and a part thereof struck him with great
force and violence on the front and left side of his head and
face and felled him to the ground or floor, where he lay
helpless for some time, until found by his fellow workmen;
that the plaintiff was then removed to a hospital where he
was confined for fourteen days and his injuries received
medical treatment; that by said blow the base of
plaintiff's skull over his left eye was bruised,
fractured and broken, and it was necessary to remove a number of pieces of bones from his skull; and
a wound or cut was inflicted on the left side of his face six
or seven inches long, and a part of his scalp torn loose; and
a hole made in his skull over his left eye which remained
open and festered for a period of five months; and his cheek
and lip on the left side of his face were cut, bruised and
lacerated and his upper jaw and several of his teeth were
made numb and paralyzed on that side of his face; that the
nerves and muscles on that side of his face and head were
severed, bruised, injured and paralyzed and do not perform
their functions as they should and did before said injury;
that he was made wholly blind for a period of five days
immediately following said injury and his eyesight has been
impaired in that they are weak and sensitive to the slightest
exposure and exertion; that the left side of his head had
become and is becoming enlarged; that said hole over his left
eye is now a fourth of an inch or more in depth and three
inches long; that his face has been disfigured forever as
above stated; and by leaving a deep scar of said length; that
he was thereby made sick and caused to continually suffer
great excruciating pain in his eyes, face and head and will
continue to suffer pain so long as he lives; that he has been
made stupid and caused to have weak and dizzy spells which he
did not have before said injury; that his memory has been
impaired in that he is forgetful; that said injuries have
produced a permanent nervous condition and have rendered the
plaintiff incapable of performing any labor which requires
mental or physical exertion; that by reason of said injuries
his mind is impaired and thereby made insane and to suffer
from epilepsy. That all of said injuries aforesaid are
permanent and plaintiff will be permanently
disabled during his life. That by reason of said injuries and
the negligence of the defendant, the plaintiff has become
liable for a hospital bill of $ 14.00 and a doctor bill of $
51.00 and has expended considerable money to cure himself of
said injuries, the exact amount plaintiff cannot now state,
and he was made unable to do any work for eleven months after
said injury, and will be required to expend large sums of
money therefor in the future. That all of said injuries and
things complained of were caused by the negligence of the
defendant in not properly guarding said emery wheel and in
directing, ordering, requiring and permitting the plaintiff
to use the same unguarded, all of which was without fault of
the plaintiff."
The
alleged defects in the complaint, as presented by
appellant's brief, are: (1) That an emery wheel is not
such a machine as the Factory Act requires to be guarded; and
(2) that the complaint does not negative assumption of risk.
(1)
Section 9 of the act commonly known as the Factory Act, Acts
1899 p. 231, being § 8029 Burns 1914, contains the
following clause: "All vats, pans, saws, planers, cogs,
gearing, belting, shafting, setscrews, and machinery of every
description therein, shall be properly guarded"; and the
sufficiency of the complaint depends upon the construction
put upon said clause by the courts. As supporting the first
alleged defect appellant relies on the case of National
Drill Co. v. Myers (1907), 40 Ind.App. 322, 81
N.E. 1103. Evidently in that case the court was misled by the
process of reasoning in the case of Laporte Carriage
Co. v. Sullender (1905), 165 Ind. 290, 75 N.E.
277, in which an attempt was made to
utilize the inapt doctrine of ejusdem generis in
construing said clause. Pein v. Miznerr
(1907), 41 Ind.App. 255, 83 N.E. 784. But the Laporte
Carriage Company case has been modified and clarified by the
decision in the case of U.S. Cement Co. v.
Cooper (1909), 172 Ind. 599, 88 N.E. 69. Since the
National Drill Company case conflicts with the later cases,
it must be regarded as having been overruled.
By the
many cases in which the courts have construed said clause the
following propositions are firmly established: (1) That all
vats, pans, saws, planers, cogs, gearing, belting, shafting
and setscrews must be...