Keller v. Gaskill

• Decision Date: 28 April 1898
• Docket Number: 2,329
• Citation: 50 N.E. 363,20 Ind.App. 502
• Parties: KELLER v. GASKILL ET AL
• Court: Indiana Appellate Court

50 N.E. 363

20 Ind.App. 502

KELLER v. GASKILL ET AL

No. 2,329

Court of Appeals of Indiana

April 28, 1898

Rehearing denied June 28, 1898.

From the DeKalb Circuit Court.

Affirmed.

S. F Swayne and A. A. Chapin, for appellant.

E. V Harris and F. S. Roby, for appellees.

OPINION

BLACK, J.

On a former appeal in this cause it was determined that in the special verdict then under consideration it was not sufficiently shown that the plaintiff was free from contributory fault. Keller v. Gaskill, 9 Ind.App. 670, 36 N.E. 303. Upon a return of the cause for a new trial, it having been suggested that the plaintiff, Frank Gaskill, had reached his majority, his next friend was discharged, and thereafter the cause was prosecuted by the plaintiff in his own name alone, against the original defendant, Josiah O. Keller, now the appellant, and Anna Keller, who was made an additional defendant in an amended complaint in two paragraphs. The issues formed were tried by jury, and a special verdict was returned.

A motion of the defendant Anna Keller for a new trial was sustained. A like motion of the defendant Josiah O. Keller was overruled, and judgment was rendered against him on the special verdict. He appeals, naming his codefendant and the plaintiff as appellees in the assignment of errors. The overruling of the joint demurrer of the defendants to each paragraph of the second amended complaint being assigned as error, it is claimed in argument that neither paragraph of the complaint stated facts sufficient. The learned counsel for the appellant suggest that both paragraphs of the complaint are objectionable on the ground that neither shows such a condition as made it obligatory upon the appellant to warn the plaintiff of his hazardous attempt, and that neither shows that he was free from contributory negligence. On the former appeal it was decided that the second paragraph of complaint was sufficient to withstand a demurrer. Upon comparison of that paragraph (which is shown by the record now before us) with the second paragraph as last amended, we do not find any substantial difference between them upon the matters to which the appellant's objections are directed. In the appellant's brief it is stated that the first and second paragraphs are substantially alike, except that while the first proceeds upon the theory that the defendants set the plaintiff, a minor, to work at that which he was not employed to do, the second paragraph proceeds upon the theory that he was injured while discharging the duties of his employment. There could, therefore, be no substantial difference in the particulars embraced in appellant's criticism. Upon the former appeal, the court, in discussing the special verdict, said: "It sufficiently appears, however, that shifting and repairing the belts, even those connected with the lathe upon which we may assume he was at work, was such employment in connection with the revolving machinery as required special instructions and admonitions to the appellee in order to make him comprehend the hazard and peril to which he was thereby exposed. These the jury find he had not received, and, as we have already said, this omission, coupled with the act of appellant in ordering the appellee to perform this class of work under such circumstances, constituted negligence in the appellant." This conclusion of the court on the former appeal is the law of the case relating to the matter to which it pertains, and each paragraph of the complaint sufficiently shows such a condition as made it, under that decision of this court, obligatory upon the appellant to warn the plaintiff of the danger.

It is alleged in each paragraph that the plaintiff was free from fault, and in view of the allegations concerning his youth and inexperience and the nature of the employment, we cannot say that the allegations of particular facts overcome the general averment of his freedom from fault. We may refrain from setting out the pleadings, inasmuch as the real contest between the parties is presented upon its merits in the special verdict.

The facts were shown by the special verdict substantially as follows, omitting some matters relating only to the defendant Anna Keller: The defendants owned and conducted at Fort Wayne, Indiana, a manufacturing establishment, engaged in making dental tools and appliances. At and before the time of plaintiff's injury the factory consisted of a large four-story building, in which there was a steam engine, by which power was supplied to run and operate machinery shafts, belts, pulleys and appliances which were in the factory. In July, 1890, the plaintiff, then about seventeen years and eight months of age, applied for employment in the factory to the defendant Josiah O. Keller, who in all matters relating to the employment and direction of the plaintiff, acted for himself and his codefendant, and as general manager. The defendants in said factory, made dental engine burrs, the manufacture of which required skilled labor, and constituted a trade by itself; and the plaintiff applied for employment to learn that trade. Within three days thereafter the plaintiff's father went to the defendant Josiah Keller, and conferred with him relative to the employment of the plaintiff to learn that trade, and said Josiah then took plaintiff's father into the room where such dental engine burrs were made and showed him what the work of making them consisted of; and it was thereupon agreed by the parties that the plaintiff should be taught that trade, and that he should at once begin work on the easier and simpler branches of the trade, and that as his skill increased, he was to be advanced to the more difficult and artistic grades of said trade and employment, until he should become proficient therein, and that during the first two weeks he should receive no remuneration for his services except such instruction, and that after the first two weeks he was to receive as compensation for his labor $ 2.00 per week in addition to such instruction. The work for the doing of which the parties so contracted was light work, unattended with danger. The plaintiff, upon such employment, and with the consent of his father, began to learn said trade. About three weeks after he entered upon such employment, he was required by the appellant to do work in the factory other than that embraced in said agreement, and the appellant then ordered and required him to do other and more hazardous work than that pointed out to the plaintiff and his father when the employment began. The plaintiff's father did not know of such change of employment. At the time of his injuries complained of, the plaintiff, in pursuance of the orders of the appellant, was acting as engineer in the factory, and as such was charged with the duty of running said engine, and the duty of oiling it and the line shafting, and the duty of repairing the belts. At the time of the injury he was not engaged in any work or duty connected with the trade of making dental engine burrs. Before he was ordered to do this other work, it had been done by two separate other employes, Thomas Corpenning and John Lipes. The appellant, when he set the plaintiff to do this other work, directed him to report to Corpenning or Lipes anything which he might observe to be out of repair, and that they would fix it or have it fixed, and that the plaintiff should, in that behalf, do what Corpenning or Lipes told him to do; and Corpenning and Lipes were each given the power to determine whether any such repairs should be done by them, or any one of them, or to order it done. The appellant directed the plaintiff to obey the orders of either Corpenning or Lipes in that behalf. When the appellant was not personally present, Corpenning and Lipes had authority and direction to act for the defendants in regard to ordering or making any needed repairs of the belts, shafts or appliances connected with said engine, and any directions given to the plaintiff in that behalf were given by Corpenning or Lipes for the defendants, in their place and by their authority. On the 8th of September, 1890, the plaintiff was engaged in the line of duty enjoined upon him by the defendants different from and other than the making of dental engine burrs, when a belt, which extended down from a pulley on a line shaft, in the factory, to a small pulley used on a lathe therein, began to break and ravel, and was out of repair. Upon discovering this, the plaintiff reported the facts to Corpenning, and was by him, acting for the defendants, ordered to go and fix said belt himself. In compliance with this order, the plaintiff proceeded to take off said belt for the purpose of repairing it. In taking it off and in attending to the repair thereof he acted in the line of the duty required in his employment as engineer, and exercised his best skill and judgment. While he was thus proceeding, the engine from which power was had was not slacked in speed. He was not instructed to stop the engine when repairing belts and pulleys. Corpenning had full knowledge of the manner in which the plaintiff was proceeding to remove the belt and make the repairs, but did not object, or point out a better way to perform said duty. The plaintiff was ignorant of the proper and safe manner in which to do said work, which was dangerous and hazardous to life and limb. The plaintiff was too young and immature and inexperienced to know and fully appreciate or understand the danger and hazard connected with the work so undertaken and required of him. He was ignorant of and uninstructed as to the risk and peril connected with the removal of the belt and the shifting thereof. On said line shaft, near said pulley, there was a set-screw, which was set in a collar running around...