Illinois Car & Mfg. Co. v. Brown, 9222.

• Docket Nº: No. 9222.
• Citation: 116 N.E. 4, 67 Ind.App. 315
• Case Date: May 11, 1917
• Court: Court of Appeals of Indiana

67 Ind.App. 315
116 N.E. 4

ILLINOIS CAR & MFG. CO.
v.
BROWN.

No. 9222.

Appellate Court of Indiana, Division No. 2.

May 11, 1917.

Appeal from Circuit Court, Porter County; H. H. Loring, Judge.

Action by William Brown against the Illinois Car & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

[116 N.E. 5]

Bomberger, Curtis, Starr & Peters, of Hammond, and Elmer E. Stevenson, of Indianapolis, for appellant. Milo M. Bruce, of Hammond, and D. E. Kelly, of Valparaiso, for appellee.

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amended complaint, a demurrer to said paragraph having been overruled and all other paragraphs of complaint having been withdrawn.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 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, Ind., 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 31 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 20 inches long, with threads and flangeburs on each end 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 1 foot high, 1 foot long and 1 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 2 feet wide and 4 feet long, and the top thereof about 3 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 3,000 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

[116 N.E. 6]

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 14 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 employés 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 14 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 6 or 7 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 cheeks 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 paralized on that side of his face; that the nerves and muscles on that side of his face and head were severed, bruised, injured, and paralized, 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...