Indiana Quarries Company v. Farmer

• Decision Date: 08 December 1915
• Docket Number: 22,844
• Parties: Indiana Quarries Company v. Farmer
• Court: Indiana Supreme Court

110 N.E. 549

184 Ind. 411

Indiana Quarries Company v. Farmer

No. 22,844

Supreme Court of Indiana

December 8, 1915

Rehearing Denied February 17, 1916.

From Lawrence Circuit Court; Oren O. Swails, Judge.

Action by Wesley Farmer against the Indiana Quarries Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)

Affirmed.

Underwood & Underwood, for appellant.

James E. Boruff and Ray R. Boruff, for appellee.

OPINION

Erwin, J.

This was an action by appellee for damages for personal injuries occasioned by the act of a fellow servant, while in the employ of appellant. The complaint is in two paragraphs, each based on Acts 1911 p. 145, §§ 8020a-8020k Burns 1914, and known as "The Employer's Liability Act." Trial was had by jury, which resulted in a verdict for appellee in the sum of $ 1,000. Appellant has assigned as error (1) overruling the demurrer to the complaint, (2) overruling the motion for judgment on the answers of the jury to interrogatories, notwithstanding the general verdict, (3) error in overruling the motion for a new trial. The principal objections to the complaint arise on the grounds that the act of 1911, supra, is unconstitutional and void, and that the complaint is insufficient as a common-law action. This court has held that the act is constitutional. Vandalia R. Co. v. Stillwell (1914), 181 Ind. 267, 104 N.E. 289; Kokomo Brass Works v. Doran (1915), 59 Ind.App. 583, 105 N.E. 167.

It is apparent from the complaint that appellant was a corporation, employing more than five men; that appellee was in its employ; that appellee on the day of his injury was in its employ and at a place where the work in which he was engaged required him to be; that his injury was occasioned by the negligent act of a fellow servant in lowering upon him dogs and chains attached to a traveler, without notice or orders so to do, when the rules of the company required that they should not be lowered without orders or notice that they would be lowered; that by reason of said acts of such fellow servant he was injured. The extent of the injury with a statement of the costs and expense to him, occasioned by the injury is also alleged. The averments of the complaint bring the case within the provisions of the act on which it is predicated.

The answers of the jury to the interrogatories find that it was a rule of the company that the traveler runner was to keep the load on the dogs at least eight feet above the ground in traveling up and down the tramway; that the traveler runner should not lower the dogs or load without a signal from the head hooker; that the traveler runner did lower the dogs and strike appellee on the head without any order or signal from the head hooker; that it was the rule of the company that the head hooker was to give warning to persons in the yard of the approach of the load or hooks; that the head hooker gave no warning of the approach of the traveler before appellee was struck by the dogs; that appellee did not know and had no notice that the dogs on the traveler were to be lowered at the place where he was injured. It is contended by appellant that because other interrogatories disclose the fact that appellee could have seen the approach of the traveler, if he had looked, and that he did not look, that therefore, he was guilty of...