Indiana Mfg. Co. v. Buskirk
| Decision Date | 20 November 1903 |
| Citation | 68 N.E. 925,32 Ind.App. 414 |
| Parties | INDIANA MFG. CO. v. BUSKIRK. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Miami County; Jabez T. Cox, Judge.
Action by William Buskirk against the Indiana Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed.Blacklidge, Shirley & Wolf and Loveland & Loveland, for appellant. W. E. Mowbray, for appellee.
Suit by appellee for personal injuries. A demurrer to the complaint was overruled, and the case was tried upon issue formed by the complaint and answer in denial, resulting in a verdict and judgment for appellee. Overruling the demurrer and appellant's motions for a new trial and for judgment on the answers to interrogatories are assigned as errors.
The complaint avers that one Williamson was in appellant's employ as chief of engineers in the engine room, having charge and control of the room and all persons and things therein; that appellee was employed as fireman, and at certain times as subordinate engineer, “and as such fireman and subordinate engineer to conform, and did in fact conform, to the orders, direction, and control” of Williamson “in the performance of all his duties pertaining to his said employment”; that during all the time of his employment appellee was under the authority of Williamson, and “subject to his orders and directions in all matters pertaining to his said employment in and about said engine room”; that on a date named appellee, while engaged in the performance of his duties to appellant, and under and in pursuance of the orders and directions and under the control of Williamson, by reason of the fault and negligence of appellant, was injured in the following manner: One Koontz, in appellant's employ, had entered the engine room, and had stood on edge in the engine room a heavy iron plate, and had propped the same, so as to be safe if left undisturbed; that a few minutes thereafter Williamson, without any notice or warning to appellee, “willfully, purposely, and negligently kicked said prop from under said iron plate,” causing the same to fall on appellee's foot; that at the time appellee was injured “he was engaged in the discharge of his usual duties as fireman and subordinate engineer for said defendant company in and about said engine room, under the control and acting under and in pursuance of the direction of” Williamson, who gave no warning that he was about to kick the prop from under the plate, nor did appellee know of the danger to which he was exposed until the plate fell; that the injury was caused wholly through the negligence of appellant, acting through Williamson, as aforesaid, and would not have occurred but for his wrongful and negligent act.
The complaint should be construed as one asking for relief under the second clause of the co-employés' liability act of 1893 (Burns' Rev. St. 1901, § 7083). From the language used in the pleading it was manifestly based upon that act. It is argued against the sufficiency of the complaint that it fails to charge the giving of any specific direction by Williamson and its execution by appellee at the time he was injured. It appears from the pleading, however, that appellee was bound to conform and did conform to the orders of Williamson “in the performance of all his duties pertaining to his said employment,” and that when injured he was in the discharge of the duties of his employment. While a motion to that effect would have required appellee to make his complaint more specific in this particular, yet we think the averment sufficient to admit proof of any particular order to which he was conforming at the time he was injured. The effect of the averment is that he was injured while in the discharge of the duties of his employment, and that he performed no duties pertaining to his employment except upon the orders of Williamson, and to these orders he was bound to and did conform. We think the complaint sufficient against a demurrer.
The jury answered interrogatories that appellee had been in the employ of the appellant as night fireman for five months. That Williamson, who was chief of engineers, was in charge of the engine as engineer, and worked on the day turn except when the machinery ran until 9 at night, and his duties required him to attend to the engine during the daytime except when the machinery ran until 9 at night. Appellee had charge of the engine on the night turn, except when machinery was running. Appellee received $1.86 per night and Williamson $60 or $65 per month. The injury occurred in the boiler room, the place appellee usually worked in when on duty. In maintaining the fires under the boilers it was the practice of the appellee to stand in front of the same while feeding coal into the furnaces. Iron plates about 4 feet long and 2 1/2 feet wide formed a part of the floor of the boiler room immediately in front of the boilers, and fit into openings in the floor, and were held down by their own weight. These plates covered certain water pipes used for feeding water to the boilers, and when the pipes were out of repair it was necessary to raise the plates to repair the same. The plate causing the injury had been raised by Michael Koontz, a pipe fitter in appellant's employ, to repair the pipes under the same. The plate had been lifted out of its position at its outer edge, and raised about 18 inches, so as to rest on the inner edge and a prop under the outer edge, from three to five minutes before the injury. Koontz asked and received permission from appellee to raise the plate, appellee assisted in raising it, and the prop was placed under by appellee. When the plate was raised it stood 8 or 10 inches from the front end of the boiler nearest thereto, and was in plain view of appellee when in the discharge of his duties at the time of his injury. It was appellee's duty to observe the steam gauge on the boiler he was tending for the purpose of ascertaining when to supply the furnaces with coal. Immediately before his injury appellee observed that the gauge indicated the necessity for more coal, and upon observing such indication he proceeded to put coal into the furnace in front of which the iron plate stood. Appellee was caused to replenish the fire at the time of his injury by the indications of the steam gauge. Williamson was not in the boiler room when the plate was raised, had said nothing to appellee about putting coal in the furnace after the plate was raised, and had given appellee no instructions about putting coal in the furnace, or where he should stand while performing his duties on the day of his injury, nor had any officer or agent of appellant given appellee any such instructions. No one gave to appellee, on the day he was injured, any instructions with reference to feeding coal into the furnaces. The injury was caused by Williamson, immediately after coming into the boiler room, kicking the prop from under the plate, causing it to fall on appellee's foot. The plate was firmly and safely propped if the prop had not been so removed by Williamson, and would not have fallen, and appellee's injury would not have occurred, had he not knocked the prop from under it. Williamson acted upon the suggestion of no one in removing the prop, and first learned the plate Had been raised when he came into the boiler room immediately before he removed the prop, and had no knowledge that the plate was to be raised.
The case made by the pleading and the evidence is not a liability for an injury resulting from appellant's negligence in the selection of a...
To continue reading
Request your trial