Indianapolis Foundry Co. v. Lackey
Decision Date | 31 January 1912 |
Docket Number | No. 7,463.,7,463. |
Citation | 51 Ind.App. 175,97 N.E. 349 |
Parties | INDIANAPOLIS FOUNDRY CO. v. LACKEY. |
Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; C. E. Weir, Judge.
Action by Charles F. Lackey against the Indianapolis Foundry Company. Judgment for plaintiff; defendant appeals. Affirmed.Chas. O. Roemler, H. O. Chamberlin, and E. E. Stevenson, for appellant. Elliott & Elliott and George W. Galvin, for appellee.
This was a suit, brought by appellee, to recover damages for personal injuries alleged to have been caused by reason of appellant's failure to guard and provide an exhaust fan on a certain emery wheel in its foundry. The cause was tried by a jury, which returned a verdict for appellee in the sum of $1,000. A motion for a new trial was overruled and an appeal taken; the errors assigned being: (1) That the court erred in overruling appellant's demurrer to the complaint. (2) That the court erred in overruling appellant's motion for a new trial.
We deem it unnecessary to set out in this opinion the complaint, or any of its averments, as the only objection urged against it presents a question which has been by this court expressly decided adversely to appellant's contention.
[1] Appellant contends that the term “dust,” as used in the factory act (section 8029, Burns 1908), does not include “particles of iron and crystals,” and that on this account this complaint is insufficient, because the ground for the relief sought therein is predicated upon a failure to comply with certain statutory requirements; and the complaint at the same time shows the alleged injuries to have arisen from conditions neither embraced within or contemplated by the statute. This court has held that it would have been improper for a court to instruct a jury that the term “dust” did not include particles of iron and emery. Muncie Pulp Co. v. Hacker, 37 Ind. App. 194-205, 76 N. E. 770;Indianapolis Foundry Co. v. Bradley, 45 Ind. App. 530-534, 89 N. E. 505. In the latter case, the court, in construing the provision of the act in question here (45 Ind. App. at page 533, 89 N. E. at page 506), said: In Muncie Pulp Co. v. Hacker, supra, the allegation in the complaint was similar to the one here considered, and the court held the complaint good under the factory act.
In its motion for a new trial, appellant set forth 31 grounds, but has specifically waived all but the following: (1) That the court erred in refusing to give to the jury instructions numbered 2, 3, 4, 5, 6, and 7, asked by appellant; (2) that the court erred in giving, on its own motion, instructions numbered 4, 6, 9, and 10; (3) that the verdict is not sustained by sufficient evidence; (4) that the verdict is contrary to law; (5) that the damages assessed by the jury are excessive.
The alleged error presented by the refused instructions, supra, is next urged by appellant. Instruction No. 2, tendered by appellant and refused, was in every essential feature an exact copy of instruction No. 6, which this court, in the case of Indianapolis Foundry Co. v. Bradley, 45 Ind. App. at page 534, 89 N. E. at page 505, held to have been properly refused. We need not discuss the other instructions refused, because in so far as they are not covered by those given by the court, the same questions are presented by the discussion of instructions 4, 9, and 10, given by the court on its own motion.
[2] The objection to these instructions urged by appellant is, in effect, that they each purport to enumerate the facts necessary to be proven by the appellee to entitle him to a recovery; and that they omit an element essential to such recovery, viz., that it was necessary for appellant to “prove that a guard or an exhaust fan (as the case may be) could have been attached to the machine without interfering with its use.”
Upon this question, this court, in the case of Muncie Pulp Co. v. Hacker, 37 Ind. App. 195, at pages 203, 204, 76 N. E. 770, at page 773, said:
The writer of this opinion agrees with the reasoning and conclusion reached by this court in the case just quoted from, upon the merits of the question here presented, but the later decisions of this court upon the authority of Laporte Carriage Co. v. Sullender, 165 Ind. 290, 75 N. E. 277, have expressly held that it is necessary, under the provision of the statute here involved, to allege and prove that the emery wheel could have been provided with an exhaust fan, without rendering it useless for the purposes intended. Such is the holding of this court in the case of National Drill Co. v. Myers, 40 Ind. App. 322, 81 N. E. 1103, and Indianapolis Foundry Co. v. Bradley, 45 Ind. App. 530, 89 N. E. 505. In the last case, the court in this kind of a case said: “To warrant a recovery, the burden was on plaintiff to show *** that it was practicable to provide said emery wheel with an exhaust fan; that plaintiff was injured by dust thrown from said wheel; that his injury was caused in the manner alleged.”
[3] It is manifest that, under these authorities, instructions 4 and 10, given by the court upon its own motion, were erroneous on account of their failure to include therein, as one of the elements essential to plaintiff's recovery, the element that it was practicable to provide said emery wheel with an exhaust fan, and, on account thereof, this cause must be reversed, unless it appears from the record that the error was invited, or that appellant was not harmed thereby.
An examination of the record in this case makes clear and fully explains the omission of this element in the instruction, as well as the reason for the court's refusal to give the instructions tendered by appellant, which involved the same question. The record discloses that there was in fact no controversy about appellant's ability to provide an exhaust fan for such emery wheel, but appellant's sole contention was that it was impossible to provide one that was sufficient to carry away all the dust and particles thrown from said wheel while in operation; and that an exhaust fan, if it had been provided for the emery wheel in question, “would not have prevented appellee's injury.”
Upon this subject, the appellee introduced the chief deputy of the state department of inspection, who read in evidence the written notice served by said department upon the appellant, notifying it to comply with the section of statute under which this action is brought, specially mentioning that it should “connect emery wheels and all dust-creating machinery...
To continue reading
Request your trial