Ittenbach v. Thomas

• Decision Date: 06 October 1911
• Docket Number: No. 7,297.,7,297.
• Citation: 48 Ind.App. 420,96 N.E. 21
• Parties: ITTENBACH et al. v. THOMAS.
• Court: Indiana Appellate Court

48 Ind.App. 420

96 N.E. 21

ITTENBACH et al.

v.THOMAS.

No. 7,297.

Appellate Court of Indiana, Division No. 2.

Oct. 6, 1911.

Appeal from Superior Court, Marion County; James M. Leathers, Judge.

Action by Abbie J. Thomas, administratrix of W. Scott Thomas, deceased, against Frank Ittenbach and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial granted.Elam, Fesler & Elam, for appellants. Kealing & Hugg and H. N. Spaan, for appellee.

LAIRY, C. J.

This action was brought in the superior court of Marion county by Abbie Thomas, as administratrix of the estate of her deceased husband, W. Scott Thomas, to recover damages occasioned by his death, which was caused by the breaking of a traveling crane upon which he was employed while in the service of appellants. The negligence charged is that the appellants did not exercise reasonable care in providing her deceased husband with a safe place to work.

The first paragraph of complaint, omitting the formal parts, is as follows: “That, at and for a long time prior to the times hereinafter stated, the defendants were engaged in the business of cut stone contractors, and of cutting and dressing stone to be used for building purposes, and as such they owned and operated a yard and mill in the city of Indianapolis, in Marion county, in the state of Indiana, in which yards and mill they cut and dressed stone, and also owned and operated, in connection with the cutting and dressing of stone, a traveling crane, used by the defendants to hoist stone to and from cars in defendants' said yard and mill, and to and from and upon wagons in said yard and mill, and to and from the planers and saws in defendants' said yard and mill. That said crane was used and operated along and upon a tramway of two tracks of rails laid and fastened upon timbers, which timbers were laid and fastened to and upon wooden trestles, which rested upon the ground, and upon which said rails the traveler of said crane moved back and forth. That said rails were about 40 feet apart and about 25 feet higher than the ground upon which said trestles rested; and said tramway was about 135 feet in length. That said traveler consisted of timbers fastened together and along and on top of which were laid and fastened two steel or 4 iron rails about 5 feet apart, running the full length of said traveler, which extended from rail to rail of said tramway, and at the end of which traveler there were four wheels resting upon the rails of said tramway, two on each rail, and underneath the rails and timbers of said traveler and connected therewith and supporting the same were four truss rods or hog chains, which, when they were properly and safely arranged and adjusted, were so arranged and adjusted that each should bear its proportionate share of the weight, strain, and load which said crane might carry, hoist, or move in and about defendants' said yard and mill while being operated. That said timbers of said traveler were bolted and fastened together at the ends and in the center. That upon said rails of the traveler there was a house or cab set upon trucks at each end thereof, and in connection with these trucks were wheels, two of which were on each side of said house or cab, and these wheels moved on and along the rails of said traveler. That from said house or cab, and between the timbers, rails, and truss rods or hog chains of said traveler, there was suspended a block and tackle connected with the machinery in said house or cab, and to which block and tackle there was attached a hook, which was fastened to the stone or other object to be hoisted or moved by said crane. That, by means of said traveler, defendants moved and hoisted large blocks of stone in and about their said yard and mill in the course of their business as such contractors and in cutting and dressing stone to be used for building purposes. That in said house or cab were located an engine, boiler, and the machinery necessary for moving said traveler along said tramway, and for moving said house or cab along the rails of said traveler, and for hoisting or moving said stone in and about defendants' said yard or mill by means of said block and tackle as aforesaid. That said traveler movedalong said tramway by means of the wheels at the end of said traveler, which rested upon the rails of said tramway as aforesaid. That said truss rods or hog chains supported the timbers, machinery, rails, and house or cab of said traveler, and it was upon these truss rods or hog chains that the strain or load moved by said crane was carried. That said tramway ran east and west, and said crane was so constructed that said traveler could be moved east and west on and along the rails of said tramway, and said house or cab upon said traveler could be moved north and south between said tramway. That said traveler had been so constructed that it could hoist and move in safety, and had hoisted and moved in safety, prior to the 6th day of February, 1907, large blocks of stone, weighing 22 and 23 tons, and when in good repair and condition could and should have hoisted in safety stone and other large bodies weighing 20 tons. That W. Scott Thomas, plaintiff's intestate, was in the employé of the defendants on said 6th day of February, 1907, and had been in their employ for a long time prior thereto, in the capacity of engineer of said traveling crane. That, as such, it was his duty to perform his work in said house or cab upon said traveler, and run and operate said engine, boiler, and machinery connected therewith, and at the order and direction of the defendants, their agents and employés, to move, by means of said crane, said blocks of stone as aforesaid, and, in order to do so, it was necessary for him to move and operate said house or cab north and south along the rails of said traveler and move and operate said traveler upon and along the rails of said tramway east and west, thereby moving and placing said stone at such places and in and about said yard and mill as defendants, their agents and employés, might desire. That the defendants had used said traveling crane for a long time prior to said date, and the happening of the injuries hereinafter complained of, and that the defendants carelessly, wrongfully, and negligently suffered and permitted the timbers, upon which the rails and house or cab upon the same rested, to become old, rotten, weak, and worn out, and carelessly, wrongfully, and negligently suffered and permitted the truss rods or hog chains supporting said timbers, rails, and house or cab, by reason of the use to which they had been put, to become weakened, and the iron or steel in the same crystallized and rendered wholly insufficient in strength to support, carry, and hoist the loads which the defendants required plaintiff's intestate to lift, hoist, and move with said crane, and rendered said traveler wholly insufficient for the purpose for which it was to be used, and rendered it dangerous and defective. That it was not the duty of plaintiff's intestate to inspect and repair said crane, or any of the several parts of the same. That on the 6th day of February, 1907, while plaintiff's intestate was engaged in the discharge of his duties as such employé of the defendants, and while engaged in the operation of said crane of the defendants, and while in the place where his said duties required him to be, to wit, in said house or cab, and while engaged in lifting a stone weighing only 14 tons, under the order and direction of the defendants, their agents and employés, in the line of their duty as such agents and employés, one of the truss rods or hog chains and timbers of said traveler, supporting said cab or house, by reason of its weakened, defective, rotten, and crystallized condition, broke, causing said house or cab to turn over, and fall to the ground, fracturing his skull and right leg, and otherwise wounding, crushing, and mangling him, by reason of which he then and there died. That defendants, at and before the breaking of said timbers and of said truss rods or hog chain, had knowledge that said timbers in said traveler were old, weakened, rotten, and worn out, and out of repair, and defective and dangerous as aforesaid, and that said truss rod or hog chain was weakened, and that the iron or steel in the same had become crystallized, and that said truss rod or hog chain was insufficient to support, carry out, and hoist the load and strain which the defendants were hoisting, moving, and placing with said traveler, as aforesaid, which they required the plaintiff's intestate to hoist and move with said crane, and that said truss rod or hog chain was wholly insufficient for the purposes for which it was used, and that the same was defective and dangerous as aforesaid, and the defendants had knowledge of said defective condition of said truss rod or hog chain, and had such knowledge long enough prior to said injuries to repair the same and put the same in good condition in the exercise of reasonable care. That plaintiff's decedent did not know that said timbers in said traveler were old, weakened, rotten, worn out, and out of repair, and defective and dangerous as aforesaid, and did not know that said truss rod or hog chain was weakened, or that the iron or steel in the same was crystallized, or that the said truss rod was insufficient to support, carry, and hoist the load and strain which defendants required, ordered, and directed him to hoist, move, and place with said crane as aforesaid, or that said truss rod or hog chain was wholly insufficient for the purposes for which it was used, or that the same was defective and dangerous as aforesaid. That said decedent at the time of his death was 55 years of age, and his expectancy at said time was 17.58 years. That on the 31st day of August, 1907, plaintiff was appointed administratrix of the estate of said W. Scott Thomas, deceased, by the clerk of the circuit...