Indianapolis Abattoir Co. v. Neidlinger

• Decision Date: 22 June 1910
• Docket Number: No. 21,400.,21,400.
• Citation: 92 N.E. 169,174 Ind. 400
• Parties: INDIANAPOLIS ABATTOIR CO. v. NEIDLINGER.
• Court: Indiana Supreme Court

174 Ind. 400

92 N.E. 169

INDIANAPOLIS ABATTOIR CO.

v.NEIDLINGER.

No. 21,400.

Supreme Court of Indiana.

June 22, 1910.

Appeal from Circuit Court, Marion County; Henry Clay Allen, Judge.

Action by Christ Neidlinger against the Indianapolis Abattoir Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions.Elam & Fesler and Harvey J. Elam, for appellant. H. N. Spaan, J. M. Bailey, Wm. Ogborn, and George Young, for appellee.

MONKS, C. J.

Appellee brought this action to recover damages for personal injuries received while in the service of appellant by reason of the falling of an elevator in its factory. The cause was tried by a jury, and a general verdict returned in favor of appellee, and also answers to interrogatories submitted by the court at the request of the parties. Over a motion for judgment in its favor on the answers to the interrogatories notwithstanding the general verdict and a motion for a new trial the court rendered judgment on the general verdict in favor of appellee.

It is first insisted by appellant that the court erred in overruling its demurrer to each paragraph of the complaint. The complaint is in four paragraphs. The first alleges that appellant was engaged in the “business of packing and wholesaling meats in its factory, and that it had constructed, erected and maintained an elevator or hoist in said factory which run in a shaft, and was hoisted by a cable and run from the bottom of the building to the top thereof, and was used to haul meats, boxes, and other commodities necessary to be hauled in said factory from one floor to another; that ever since the construction of said elevator by permission, consent, and knowledge of the defendant, its employés in said factory went up and down on said elevator and hoist from one floor to another as their duties and work required; that the plaintiff knew nothing about the construction or machinery and appliances in and about said elevator, and that all he knew about the same was to stop and start it as he had been taught and instructed by said defendant; that the defendant had carelessly and negligently constructed and maintained said elevator, in this: That it had carelessly and negligently failed and refused to place safety devices on said elevator whereby the cab would be securely held in the event of accident to the rope, cable, or hoisting machinery.” The further averments of said paragraph describe the manner and extent of appellee's injury. They are to the effect that on the occasion of the accident he was on the hoist with certain goods, being taken from a lower to an upper floor, and the hoisting cable gave way and broke, and the cage fell with appellee because appellant had failed to place safety devices on the hoist that would securely hold it in case of such a break.

It is well settled that a complaint for negligence must allege facts showing a legal duty upon the part of the defendant to the plaintiff, and that he negligently performed or failed to perform such duty, and that the failure to discharge such duty was the proximate cause of the injury complained of. The rule is that facts must be alleged from which the law will imply the existence of such duty. When the facts alleged show a legal duty owing by defendant to the plaintiff, then a violation of such duty may be shown by a general allegation that he negligently performed or failed to perform such duty. Pittsburgh, etc., R. Co. v. Peck, 165 Ind. 537, 76 N. E. 163, and cases cited; Chicago, etc., R. Co. v. Barnes, 164 Ind. 143, 73 N. E. 91, and cases cited; Chicago, etc., R. Co. v. Barker, 169 Ind. 670, 83 N. E. 369, 17 L. R. A. (N. S.) 542, and cases cited; Kentucky, etc., R. Co. v. Moran, 169 Ind. 18, 80 N. E. 536, and cases cited; Chicago, etc., R. Co. v. Lain, 170 Ind. 84, 83 N. E. 632, and cases cited.

Said first paragraph describes a freight elevator or hoist in a meat packing establishment, and the only complaint made of it is that there were no safety devices that would prevent a fall if the cable broke. It is settled law that there is no general obligation to place safety devices upon such an elevator either under the common law or by statute. In Sievers v. Peters, etc., Co., 151 Ind. 642, 650, 50 N. E. 879, this court said: “The rule is that the owners are under no legal obligation to place safety appliances upon elevators not intended to carry passengers. Hall v. Murdock, 114 Mich. 233 ;Kern v. De Castro, etc., Co., 125 N. Y. 50 ;Hoehmann v. Moss Eng. Co., 4 Misc. Rep. 160, 23 N. Y. Supp. 787.” If with the knowledge and consent of appellant its employés “rode up and down on said elevator from one floor to another as their duties and work required,” as alleged in said paragraph, they were not, in so doing, passengers, but employés, and the degree of care required of appellant was that of employer to employé which is ordinary care. Sievers v. Peters, etc., Co., 151 Ind. 642, 653, 50 N. E. 877, 52 N. E. 399, and cases cited; McDonough v. Lampher, 55 Minn. 501, 57 N. W. 152, 43 Am. St. Rep. 541. See, also, Walsh v. Cullen, 235 Ill. 91, 85 N. E. 223, 18 L. R. A. (N. S.) 911, and note; Indianapolis, etc., R. Co. v. Foreman, 162 Ind. 85, 92, 69 N. E. 669, 102 Am. St. Rep. 185, and cases cited.

As the employé while so riding upon such elevator is not a passenger but an employé, it cannot be said from this fact alone that it is the legal duty of the employer to equip it with a safety device in the absence of a statute requiring it even though it is so used by the employés for their convenience and in the performance of their work. Sievers v. Peters, etc., Co., 151 Ind. 642, 50 N. E. 877, 52 N. E. 399, and cases cited; Hoehmann v. Moss Eng. Co., 4 Misc. Rep. 160, 23 N. Y. Supp. 787.

It is not the duty of the employer to furnish the latest and most improved machinery, but is only required to exercise ordinary care in selecting and maintaining machinery and appliances. Lake Shore, etc., R. Co. v. McCormick, 74 Ind. 440, 446, and cases cited; Indiana Car Co. v. Parker, 100 Ind. 181, 187, and cases cited; Hoehmann v. Moss Eng. Co., supra.

As was said in Lake Shore, etc., R. Co. v. McCormick (supra) 74 Ind. 446: “Neither companies or individuals are bound, as between themselves and their servants, to discard and throw away their implements or machinery upon the discovery of every new invention which may be thought or claimed to be better than those they have in use; but if they take ordinary care and exercise ordinary prudence to keep their implements or machinery in sound repair, so that harm does not result to the servant for the want of such sound condition of the implements or machinery used, then such individuals or companies will not be responsible to servants for any injury which may occur to them in the use of such implements or machinery.”

The only statute concerning safety devices for elevators in factories is section 8025, Burns' Ann. St. 1908, being section 5 of the factory act of 1899 (Acts 1899, p. 233). This section, however, imposes no absolute duty to provide elevators in factories with safety devices, but only provides that elevators in factories shall be equipped “with safety devices whereby the cabs or cars will be securely held in the event of accident to the cable or rope or hoisting machinery or from any similar cause,” when the same is required by the chief inspector appointed under said act of 1899. Reliance Mfg. Co. v. Langley, 41 Ind. App. 175, 82 N. E. 114;Boehm v. Mace, 18 N. Y. Supp. 106.

In Reliance Mfg. Co. v. Langley (supra) 41 Ind. App. pages 180, 181, 82 N. E. page 116, the court said in regard to section 8025, supra: “If the Legislature had intended arbitrarily to impose upon all owners, lessees or agents the duty of maintaining safety appliances on all elevators, it would have said so. *** The act seems to have been carefully drawn to cover the subjects intended. The explanation is to be found in the fact that prior to this enactment it had been frequently determined in the courts of this state that on some elevators and hoists, under certain conditions and circumstances, safety devices were neither practical nor necessary. *** It is proper to assume that the Legislature understood the obligations of the parties, as determined in these decisions, when it passed the act in question and recognized that the rights and interests of all the parties might best be protected if left in the hands of the factory inspector. The Legislature did not deem it best arbitrarily to provide that the shafts should be inclosed or that automatic traps or doors should be maintained. We can see no reason why the Legislature should depart from this rule with reference to safety devices, and, in the absence of any words expressing such intention, it would be traveling in the realms of imagination to hold that the Legislature intended to impose the duty of providing safety devices for all elevators, without regard to their character, practicability, or necessity.”

No facts are alleged in said complaint showing that said chief inspector ever required that said freight elevator in appellant's factory be equipped with any safety device, or that he made any requirements in regard to the same. It is evident under the authorities cited that said first paragraph is insufficient because it does not show by the averment of proper facts that appellant owed a duty to appellee to place a “safety device upon said elevator.” If said paragraph disclosed such duty, then, under a well-settled rule, a violation or breach thereof may be shown by a general allegation of negligence. A general allegation of negligence, however, is not sufficient to show both a duty and a violation thereof. Chicago, etc., R. Co. v. Lain, 170 Ind. 84, 91, 83 N. E. 632;Pittsburgh, etc., R. Co. v. Peck, 165 Ind. 537, 76 N. E. 163, and cases cited.

The second paragraph of the complaint is substantially the same as the first, except that an ordinance of the city of...