Jenney Elec. Mfg. Co. v. Flannery

• Decision Date: 10 May 1912
• Docket Number: No. 8,116.,8,116.
• Citation: 53 Ind.App. 397,98 N.E. 424
• Parties: JENNEY ELECTRIC MFG. CO. v. FLANNERY.
• Court: Indiana Appellate Court

53 Ind.App. 397

98 N.E. 424

JENNEY ELECTRIC MFG. CO.

v.FLANNERY.

No. 8,116.¹

Appellate Court of Indiana, Division No. 2.

May 10, 1912.

Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Action by Thomas Flannery against the Jenney Electric Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.Elmer E. Stevenson, for appellant. Miller & Dowling, for appellee.

LAIRY, J.

The appeal in this case is taken from a judgment rendered by the trial court in favor of appellee for damages, caused by the loss of an eye through the alleged negligence of appellant. The negligence charged in the complaint was the failure of appellant to equip an emery wheel, located in its factory, with an exhaust fan, in accordance with the provisions of our factory act. Appellee was employed in the factory as a machinist, and received the injury while using said emery wheel.

[1] A demurrer to the complaint was overruled, and this is the first error relied upon for reversal. Appellant objects to the sufficiency of the complaint, upon the ground that it appears from the averments thereof that the injury was not caused by dust escaping from the emery wheel, but by particles of the wheel thrown off in its use; and that an exhaust fan was not intended to prevent, and would not have prevented, an injury from such a source. This objection is not well taken. The complaint avers, in substance, that a large number of small and irregular particles, of which the wheel was composed, became dislodged therefrom in the form of dust, by reason of the contact of the revolving wheel with the tool, and were projected in the form of dust violently from the wheel into the air, and that particles of the wheel and of the tool which he was sharpening, thus thrown off in the form of dust, struck him in the eye, causing the injury for which he sues. These averments sufficiently charge that the particles which struck and injured plaintiff's eye were sufficiently small to be properly denominated as dust. If the particles thrown off from either the wheel or the tool which was being sharpened were so small and light that an exhaust fan of proper power, correctly attachedand operated in connection with the emery wheel, would have carried them away and prevented the injury, then it may be properly regarded as “dust,” within the meaning of the statute. Burns' Ann. St. 1908, § 8029. The purpose of the statute requiring exhaust fans on emery wheels is to reduce the hazard incident to their operation. No doubt, as contended by appellee, the statute was intended to provide a means for carrying away the dust, which would otherwise float in the air and produce injurious results to those who breathed it; but, if the result of the use of such a fan in connection with the operation of an emery wheel is to carry away small particles of matter thrown off from such wheels while in operation, it has the effect to afford protection to the eyes of persons employed at such wheels. We cannot say that the Legislature did not intend that the statute should have this effect. Muncie Pulp Co. v. Hacker, 37 Ind. App. 194, 76 N. E. 770;Indianapolis Foundry Co. v. Bradley, 45 Ind. App. 530, 89 N. E. 505. The averments of the complaint show clearly that the injury to the eye of appellee was caused by dust; and that an exhaust fan would have prevented the injury. The complaint is otherwise sufficient, and the demurrer was properly overruled.

The jury returned, with their general verdict, answers to 106 interrogatories submitted by the court. The second error assigned is that the court erred in overruling the motion of appellant for judgment in its favor notwithstanding the general verdict.

[2] Upon this question, it is first asserted that the interrogatories show that the negligence of the appellant was not the proximate cause of the injury to appellee. As sustaining this contention, we are cited in interrogatory No. 74, and the answer thereto, which are as follows: “Is there any certainty that an exhaust fan would have prevented the particle from getting into plaintiff's eye? Answer: No possibility.” Appellant claims that this amounts to a finding that there is no possibility that an exhaust fan would have prevented the injury. As the interrogatory is framed and answered, its meaning is not entirely clear. It might mean that there was no possibility that an exhaust fan would have prevented the injury, but, if it has such meaning, it is in conflict with interrogatory No. 63, in answer to which the jury finds that an exhaust fan or guard would have prevented the particle from getting into appellee's eye. In case two interrogatories are in conflict, they nullify each other, and the general verdict is not affected by either. Terre Haute & I. R. Co. v. Mason, 148 Ind. 578, 46 N. E. 332;Fireman's Fund Ins. Co. v. Dunn, 22 Ind. App. 332, 53 N. E. 251.

[3][4] If, by its answer, the jury meant that there was no possibility of determining this fact with certainty, such answer will not overthrow the general verdict. If the fact was established by a preponderance of the evidence, the jury was justified in finding such fact to be true by their general verdict. Absolute certainty is not required, and answers to interrogatories, showing that a fact was not established with certainty, or that there was no possibility of the jury ascertaining such fact with certainty, would not amount to a finding that such fact was not established by a preponderance of the evidence. If an interrogatory is doubtful in its meaning, such doubt will be resolved in favor of the general verdict. Jones v. Austin, 26 Ind. App. 399, 59 N. E. 1082;Haughton v. Ætna Life Ins. Co., 42 Ind. App. 527, 85 N. E. 125, 1050.

By the answer to the sixty-sixth interrogatory, the jury finds that the injury to appellee was purely accidental. This answer is nullified by answers to other interrogatories, which show that the injury was due to the negligence of appellant. From an examination of the answers to interrogatories as a whole, it is apparent that the jury did not mean that the injury was “purely accidental,” in the sense that it occurred without the fault of any one.

Appellee was employed as a machinist in appellant's factory. The answers to interrogatories show that he was a man of mature years, and was experienced in doing the work in which he was engaged; that it was a part of the duty of appellee to sharpen the drills used by him, and that appellant supplied an emery wheel in the factory for the purpose of enabling him to sharpen his drills thereon; that the emery wheel so supplied was suitable for that purpose, and appellee was required by the superintendent to use it; that appellee had, before that time, sharpened metal tools on emery wheels, and knew fully the danger incident to such work, and that he knew, at the time he was grinding his drill on the emery wheel just before his injury, that such wheel was of coarse construction, and that it was revolving very rapidly, throwing off particles of the wheel and metal with great force; and that he also knew that such flying particles were dangerous, and he was likely to be injured thereby.

The interrogatories also show that at the time of the injury to appellee appellant maintained in its factory a toolroom, and employed therein skilled men, a part of whose duty it was to sharpen metal drills; that the machinery in the toolroom which was used for grinding drills was in good working order at the time of appellee's injury, and that he knew of all these facts; that he had previously had his drills sharpened in this room, and knew at and prior to his injury that he could get them sharpened there; that there was nothing to prevent him from having his drill sharpened in this room; and that, if he had done so, he would not have been injured.

The answers to interrogatories further show that there was no general rule in the machine shop, requiring that tools should be taken to the toolroom to be sharpened; and that appellee voluntarily went to the emery wheel to sharpen his drill thereon. Interrogatory No. 91 is as follows: “Should not plaintiff have had the drill sharpened in the toolroom?” To which the jury answered, “No.”

From the facts so found by the jury, it appears that plaintiff was provided with two means by which his drills could be sharpened, in case they required it: He could take them to the toolroom to be sharpened, or he could sharpen them himself on the emery wheel provided for that purpose. Had he employed the first means, it would have been attended with no danger, and he would not have been injured; but he voluntarily adopted the second means, thereby exposing himself to a danger which he well understood and appreciated. The question is: Do these facts show, as a matter of law, that appellee was guilty of contributory negligence?

[5] Where a servant has a duty to perform, and there are two ways or methods of performing it, one of which is safe and the other dangerous, or one of which is more dangerous than the other, and when he knows that one way is safe and the other dangerous, or that one way is more dangerous than the other, it may be stated, as a general rule, that he will not be permitted to recover damages from the master for injuries received as a consequence, if he voluntarily adopts the dangerous way, or the more dangerous of two ways, when a safe or a safer way was open to him. New York, etc., R. Co. v. Hamlin, 170 Ind. 20, 83 N. E. 343, 15 Ann. Cas. 988;Consolidated Stone Co. v. Redmon, 23 Ind. App. 319, 55 N. E. 454;Chamberlain v. Waymire, 32 Ind. App. 442, 68 N. E. 306, 70 N. E. 81;Gilbert v. Chicago, etc., R. Co. (C. C.) 123 Fed. 832;Newport News Pub. Co. v. Beaumeister, 102 Va. 677, 47 S. E. 821;Schoultz v. Eckardt, 112 La. 568, 36 South. 593, 104 Am. St. Rep. 452.

[6][7] The reason for the rule must be, either that the servant, by voluntarily encountering a known danger, assumes the risk, or that by so...