Indianapolis Foundry Company v. Lackey

• Decision Date: 31 January 1912
• Docket Number: 7,463
• Citation: 97 N.E. 349,51 Ind.App. 175
• Parties: INDIANAPOLIS FOUNDRY COMPANY v. LACKEY
• Court: Indiana Appellate Court

97 N.E. 349

51 Ind.App. 175

INDIANAPOLIS FOUNDRY COMPANY v. LACKEY

No. 7,463

Court of Appeals of Indiana

January 31, 1912

Rehearing denied April 26, 1912. Transfer denied July 5 1912.

From Superior Court of Marion County (75,702); Clarence E. Weir Judge.

Action by Charles F. Lackey against the Indianapolis Foundry Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Charles O. Roemler, H. O. Chamberlin and E. E. Stevenson, for appellant.

Elliott & Elliott and George W. Galvin, for appellees.

OPINION

HOTTEL, J.

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 as follows: (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 adverse to appellant's contention.

Appellant contends that the term "dust", as used in the factory act (Acts 1899 p. 231, § 8029 Burns 1908), does not include "particles of iron and crystals", and that on this account this complaint is insufficient, because the ground for relief sought therein is predicated on 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 nor 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 (1906), 37 Ind.App. 194, 205, 76 N.E. 770; Indianapolis Foundry Co. v. Bradley (1910), 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, said at page 533: " One purpose of the statute is to reduce the hazards incident to the operation of emery-wheels. It requires that exhaust-fans of sufficient power shall be provided for the purpose of carrying off dust from emery-wheels and grindstones and dust-creating machines'. Appellee testified that the dust thrown off the wheel in question was emery and iron'. We think the legislature failed in its purpose if the statute did not apply to the particles of created matter thrown from the wheels while in operation, as well as any dust likely to be present in rooms in which dust-creating machines are operated."

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 thirty-one grounds, but has specifically waived all but the following: (1) That the court erred in refusing to give to the jury instructions two, three, four, five, six and seven asked for by appellant; (2) that the court erred in giving, on its own motion, instructions numbered four, six, nine and ten; (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 two, tendered by appellant and refused, was in every essential feature an exact copy of instruction six which this court in the case of Indianapolis Foundry Co. v. Bradley (1910), 45 Ind.App. 530, 534, 89 N.E. 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 four, nine and ten, given by the court on its own motion.

The objection to these instructions urged by appellant is, in effect, that each purports to enumerate the facts necessary to be proved by appellee to entitle him to a recovery, and that each omits 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."

On this question this court in the case of Muncie Pulp Co. v. Hacker, supra, said at page 203: "In Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149 , 58 L.R.A. 944, a complaint based upon the clause of this act first-above quoted was held to state a cause of action, although the pleading contains no averment that it was possible or practicable properly to guard the saw without rendering it useless for the purpose intended. But in the later case of Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290 , a paragraph of complaint was held insufficient for the reason among others, that it omitted an averment of this fact; the case holding that whether the thing required by the statute to be guarded could be so guarded was not a matter of defense. But in the case at bar it is sufficiently shown by the pleading that no exhaust-fans were provided for the emery-wheels, that without the exhaust-fans they were dangerous, and that it was practical to operate the emery-wheels with proper exhaust-fans. This clause of the above section was not under consideration in either Monteith v. Kokomo, etc., Co., supra, or Laporte Carriage Co. v. Sullender, supra; and it would seem to be sufficient to aver that the emery-wheel was not provided with any exhaust-fan for carrying off dust therefrom. The effect of the statute is to impress upon an emery-wheel in use in a factory a characteristic of danger, and to forbid its use unless provided with an exhaust-fan. The statute imposes a specific obligation with reference to a specific thing, and the failure to comply with the requirements of the statute is a plain breach of a statutory duty owing to the employe. But, if the doctrine of the case of Laporte Carriage Co. v. Sullender, supra, is applied to this particular clause of the statute, the pleading sufficiently avers that the emery-wheel could have been provided with an exhaust-fan without rendering it useless for the purposes intended."

The writer of this opinion agrees with the reasoning and conclusion reached by this court in the case just quoted from on the merits of the question here presented, but the later decisions of this court, on the authority of Laporte Carriage Co. v. Sullender, supra, 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 (1907), 40 Ind.App. 322, 81 N.E. 1103, and Indianapolis Foundry Co. v. Bradley (1910), 45 Ind.App. 530, 89 N.E. 505. In the last case the court 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."

It is manifest that, under these authorities, instructions four and ten, given by the court on 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".

On this subject, appellee introduced the chief deputy of the State Bureau of Inspection, who read in evidence the written notice served by said department on 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 with exhaust-fans for removal of dust and flying substances from such wheels." This witness described the exhaust-fans which he had observed attached to emery-wheels in other factories, the manner of their connection with the wheel, their action on the dust, and the process of installing the same, and further testified that it was "possible to install a system of that kind in connection with the ordinary emery-wheel used in foundries and machine shops."

All of appellant's witnesses who testified on this subject were either from factories which operated...