Jeffersonville Manufacturing Co. v. Holden
| Decision Date | 04 June 1913 |
| Docket Number | 22,389 |
| Citation | 102 N.E. 21,180 Ind. 301 |
| Parties | Jeffersonville Manufacturing Company v. Holden |
| Court | Indiana Supreme Court |
Rehearing Denied October 17, 1913.
From Floyd Circuit Court; William C. Utz, Judge.
Action by Thomas A. Holden against the Jeffersonville Manufacturing Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Elmer E. Stevenson and J. H. Edwards, for appellant.
George H. Voigt, Evan B. Stotsenburg and John H. Weathers, for appellee.
Appellee recovered judgment for two thousand dollars in the court below in an action against appellant to recover damages for personal injuries sustained by him by reason of the alleged violation of § 8029 Burns 1908, Acts 1899 p. 231, generally known as the factory act. In prosecuting an appeal to this court appellant seeks to have §§ 8021-8047 Burns 1908, Acts 1899 p. 231, declared "unconstitutional, void and invalid" and particularly insists that § 8029, supra, is invalid for uncertainty, in that the language thereof makes it the duty of the owner, his agent, superintendent or other person in charge of a manufacturing establishment, where such machinery as that on which appellee was injured is operated, to have the same "properly guarded". When the language "shall be properly guarded" is considered in connection with the other language of that section, and the other sections of the act in question, it is clear that it means a safeguard to protect the life and limbs of employes engaged about dangerous and hazardous machinery and mechanical appliances, where such can be so guarded without impairing their usefulness. What the size or shape of such guard shall be is not specifically stated in the statute which requires only that it shall be proper, and the term "proper" as thus used means fit, suitable, appropriate. The statute is not subject to the criticism of appellant. State v. Louisville, etc., R. Co. (1912), 177 Ind. 553, 96 N.E. 340; Booth v. State (1913), 179 Ind. 405, 100 N.E. 563; Kirchoff v. Hohnsbehn Creamery Supply Co. (1910), 148 Iowa 508, 512, 123 N.W. 210.
Appellant contends that the court erred in overruling its demurrer to each of the paragraphs of complaint for the reason that, the statute being void, "neither paragraph of the complaint states a cause of action under the common law as it is shown by the facts alleged that the plaintiff assumed the risk, the conditions and dangers being well known to him." But we have seen that the statute is not invalid and the charge of negligence in each paragraph of complaint being a violation of statutory requirements, there could be no assumption of risk. The doctrine of assumption of risk does not apply to a case where the injury occurs by reason of the negligent non-observance of a positive and fixed duty enjoined by a statute. Cleveland, etc., R. Co. v. Powers (1909), 173 Ind. 105, 114, 88 N.E. 1073, 89 N.E. 485, and cases cited; Indianapolis, etc., R. Co. v. Waddington (1907), 169 Ind. 448, 82 N.E. 1030; Island Coal Co. v. Swaggerty (1903), 159 Ind. 664, 667, 62 N.E. 1103, 65 N.E. 1026; 26 Cyc. 1180. "The failure to perform any duty imposed either by a statute or an ordinance is negligence per se." Pennsylvania Co. v. Hensil (1880), 70 Ind. 569, 574, 36 Am. Rep. 188. See, also, Wabash R. Co. v. Beedle (1910), 173 Ind. 437, 442, 90 N.E. 760; King v. Laycock, etc., Co. (1910), 46 Ind.App. 420, 423, 92 N.E. 741.
It is next urged that the first and second paragraphs of complaint are insufficient to withstand the demurrer for the reason that it is not directly alleged that the failure of appellant to guard its machine was the proximate cause of appellee's injury. The first paragraph alleges, in substance, that in the operation of the wood-worker (jointer machine) there is danger that while the person operating the same runs the wood over the knives it would be thrown back suddenly and the hand of the operator be thereby brought in contact with the knives; that a proper guard could have been placed on the machine without interfering with its proper operation; that such guard would have protected the knives and prevented any injury from the aforesaid danger; that appellant, in violation of the statute, negligently failed to provide such guard and the machine was without such guard; that while appellee was operating the machine and holding a piece of wood on the table of the same and running it over the knives, the wood was suddenly thrown back by the operation of the machine, thereby causing appellee's hand to come in contact with the knives and be thereby injured; that if such guard had been placed on the machine his hand would not have come in contact with the knives; that the injury was caused by the negligence of appellant in failing to provide the machine with such guard.
The second paragraph contains allegations similar to those of the first paragraph and further avers that appellant had provided the machine in question with "a guard consisting of a board, attached to the table of said machine with a screw and placed on said table in such a position that it would cover said aperture" through which the knives protruded but "that to make said guard a proper one and one that would safely guard said knives and prevent injury from the danger aforesaid, it should then and there have been provided with a spring to hold said guard against the material run over said table for the purpose of being sawed and to completely cover said aperture above said knives the instant such material was removed; that said guard with such spring would then and there have guarded said knives and prevented any injury from the danger aforesaid."
Each paragraph alleges facts sufficient to show that the failure to guard the machine properly was the proximate cause of the injury, and there was no error in overruling the demurrer on that ground. It is further insisted, however, that the second paragraph of complaint is defective because it is "ambiguous, and uncertain if not repugnant." In our opinion it is not subject to this criticism and states a good cause of action.
Appellant earnestly endeavors to show error in overruling its motion for judgment on the answers to interrogatories. In determining this question we must be guided by the following rules laid down by this court: "a general verdict will not be defeated by isolated facts disclosed by answers to interrogatories, unless such facts are shown to be so repugnant and contradictory to the general verdict that both cannot be true under any conceivable state of facts provable under the issues." Indiana R. Co. v. Maurer (1903), 160 Ind. 25, 27, 66 N.E. 156.
"In determining this question, we cannot look to the evidence, but only to the complaint, answer, and general verdict, and the answers of the jury to the interrogatories." Consolidated Stone Co. v. Summit (1899), 152 Ind. 297, 300, 53 N.E. 235.
No purpose can be served by setting out the 191 interrogatories and answers in this opinion, but it is sufficient to say that no such conflict between the general verdict and the answers to interrogatories is shown as would warrant the striking down of the general verdict, especially in view of appellant's statement "that facts are found in the answers to the interrogatories in this case that are favorable to appellee."
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Jeffersonville Mfg. Co. v. Holden
...180 Ind. 301102 N.E. 21JEFFERSONVILLE MFG. CO.v.HOLDEN.No. 22,389.Supreme Court of Indiana.June 4, 1913 ... Appeal from Circuit Court, Floyd County; William C. Utz, Judge.Action by Thomas A. Holden against the Jeffersonville Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.[102 N.E. 22]Instructions 15, 16, and 18, given as tendered by plaintiff, were as follows:No. 15. The defendant claims that at the time in question there was a guide or fence on said machine which could be so placed by the operator of ... ...