Indiana Iron Co. v. Cray

• Decision Date: 10 December 1897
• Citation: 48 N.E. 803,19 Ind.App. 565
• Parties: INDIANA IRON CO. v. CRAY.
• Court: Indiana Appellate Court

19 Ind.App. 565

48 N.E. 803

INDIANA IRON CO.

v.CRAY.¹

Appellate Court of Indiana.

Dec. 10, 1897.

Appeal from circuit court, Delaware county; George H. Koons, Judge.

Action by Arthur B. Cray against the Indiana Iron Company for damages for personal injuries. From judgment on a special verdict in favor of plaintiff, defendant appeals. Affirmed.

Ryan & Thompson, for appellant. M. E. Forkner and J. N. Templer & Son, for appellee.

BLACK, J.

The appellee brought his action against the appellant for the recovery of damages for a personal injury alleged to have been caused through the negligence of the appellant, without the fault of the appellee, while he was working in the appellant's manufactory as its employé. There was a special verdict, upon which judgment was rendered for the appellee for $2,750, and it is contended, under an assignment of error to that effect, that the court erred in overruling the appellant's motion for judgment in its favor on the verdict. The special verdict was very lengthy, and consisted of two sets of interrogatories, with the answers thereto. It was, in substance, found that the appellee was injured on the 23d of March, 1895, while working in a manufacturing plant then, and for about three years before, owned and operated by the appellant, at Muncie, in a one-storied building; a part of the business being to take heated iron from a furnace, and manufacture it into iron and steel by passing it through a system of rollers situated on the floor of the building in a line extending north and south. The building was spanned by beams running east and west about 24 feet from the floor. An iron track, extending north and south above said rollers, rested on said beams. There were suspended hooks upon pulleys running over said track between said beams, the hooks being used by operatives in passing iron in process of manufacture through the rollers, from one roller to another. The rollers were operated by steam by means of engines and boilers in charge of an engineer in the factory, which contained a furnace for heating the iron preparatory to rolling. There were in the appellant's plant three mills, as they were called,-a mill consisting of two or more furnaces, two or more sets of rolls, an engine, an arrangement called a “telegraph,” by which heated metal was carried from the furnace to the rolls, and the appurtenances connected to and with the telegraph, and hooks and tongs. The appellee, when injured, was working at a 10-inch mill. In operating this mill there were two sets of employés, called, respectively, “day turn” and “night turn.” The turns consisted of a boss roller and certain assistants, whose classes are named in the verdict, being 17 men besides the boss roller. The person using the hook for putting the metal through the rolls was called a “hook-up.” The appellee when injured was a hook-up on the night turn. About the 21st of February, 1895, a piece of corrugated iron was placed by one Henry Wells across two of said beams, which were 10 to 15 inches apart, and said iron extended northward from the north beam about 4 or 5 feet and over, and in line with one or more of said rollers, its ends not attached or supported in any way. Said Wells fastened said iron by nailing it to the south beam near the south end of the iron with two wire nails procured by him in said factory, for which purpose he could also have obtained additional nails. The iron was so placed to prevent water from dropping upon the appellant's laborers and employés while engaged in operating the rolls beneath it. It was not sufficiently and securely fastened, taking into consideration the circumstances and use to which it and the accompanying appliances were adapted, and for which they were used. The operation of the pulley and the jar of the mill caused the north end of the iron to vibrate continually, and the natural tendency of the vibration of the iron and the jar of the beams was to withdraw and loosen the iron from its fastenings. In the operation of the pulley next to the beam upon which said iron was placed it jarred the beam in running against it, and this constantly tended to loosen the fastenings of such iron, and to cause it to fall off, as a necessary consequence, in the reasonable and ordinary operation of the pulley. This corrugated iron had been in this position about four weeks, when, on the 25th of March, 1895, it left its fastenings, and fell down upon the appellee while at work at the rolls immediately under it. The verdict described the appellee's injury, and his medical treatment, and stated the value of the treatment.

The appellee first observed said iron in its place when he went to work, at night, about three weeks before he was injured. When he first discovered it, he was impressed that it might be dangerous and insecure, and he or his co-laborer, one McAlister, in his presence, at once called the attention of the engineer to its condition, and he or McAlister requested the engineer to go up and examine it. The engineer declined to do so, but he at the time promised to call the greaser to go up and examine it, and he did call the greaser, who went up, and examined it. He took hold of it, and said it was safe, and, thinking that it was securely fastened, he immediately came down, and informed the engineer that it was perfectly safe, and the engineer immediately informed the appellee and McAlister that the iron was safe and secure; that it was as safe as if it had 50 nails driven in it. The appellee thereupon believed that the iron was safe, and securely fastened, and thereafter, until his injury, he continued to work at said place in the belief that the iron was safely and securely fastened, and had good reason to so believe, and did not have any reason to believe that it was unsafe, or not securely fastened, and was not thereafter possessed of any facts or circumstances that would reasonably lead him to believe or know that the iron was not safely or securely fastened in its place. It was found that there was nothing to obstruct the view of the iron below where it was placed; that it could be seen easily by the exercise of the ordinary sense of vision by any one looking to or examining the condition of the mill; that there was nothing to prevent the appellee from seeing it sooner than he did, or to prevent the appellant or its agents charged with the duty of keeping the mill in repair from seeing the iron in its place. It was also found that there were a number of beams, bents, rafters, and other pieces of sheet iron in the immediate neighborhood of said corrugated iron; also the telegraph track; and that said piece of corrugated iron was hidden or concealed, except one end, by the timbers and beams in and about the top of the building; and that a number of men who worked regularly about the 10-inch mill did not discover the iron, or know it had been put up, until it fell. Also it was found that the iron could be reached easily by a ladder upon a crane standing near it all the time; and to reach it one had to go by the ladder, and, when he reached the top of the ladder, to proceed upward and to one side from 12 to 20 feet on and over a beam about 8 by 10 inches. It was found that there was an association, or labor union, known as the Amalgamated Association of Iron and Steel Workers; that prior to the appellee's injury the appellant entered into a contract or agreement with said association regulating the employment of roll hands in appellant's mill; that said association had certain rules and regulations regulating the employment of roll hands, one of which was that all mills employing members of said union as rollers should employ the boss roller, and require him to hire or furnish his own assistants. The verdict contained an interrogatory and answer as follows: “(243) If you should find that the Amalgamated Association of Iron and Steel Workers had certain rules and regulations regulating the employment of roll hands, then state what those rules and regulations were. Answer: We don't know.” The appellant employed one John L. Smith as the boss roller in its mill, and required him to furnish his assistants, and he and his assistants were to be paid a stipulated price per ton of the product passing through his hands, which amount of wages was to be distributed between said boss roller and his assistants in compensation for their services. Said Smith, as boss roller, and his assistants, operated the set of rolls at which the appellee was injured. At and before the time when the appellee was injured at said 10-inch mill, there had been and was a contract and arrangement by and between the appellant and said Smith by which fagots of iron and steel were weighed and delivered by the appellant to said Smith at the furnaces of said 10-inch mill, and he received and accepted said fagots and metal from the appellant, and put the same, at his own cost and expense, through said furnaces, and said sets of rolls of said 10-inch mill, and produced merchantable iron and steel products; and said Smith was responsible for the material so delivered to him, and for the production of merchantable iron and steel products from the same. Under and by virtue of this contract or arrangement the appellant furnished the motive power by and with which to run and operate the rolls of said 10-inch mill, and said Smith was paid by the ton by the appellant for such iron and steel products so by him manufactured. He was to be paid $2.35 per ton for the good, merchantable iron and steel products by him produced for the appellant under said contract and agreement.

The verdict contained the following: “(148) Did said John Smith have the sole control of the manner in which the fagots of metal furnished him should be manufactured into merchantable iron and steel up to the time the merchantable article was delivered to the defendant, the Indiana Iron Co.? Answer: Yes. (149) After these fagots of metal were...