King v. Inland Steel Co.

• Decision Date: 02 November 1911
• Docket Number: No. 21,870.,21,870.
• Citation: 177 Ind. 201,96 N.E. 337
• Parties: KING v. INLAND STEEL CO.
• Court: Indiana Supreme Court

177 Ind. 201

96 N.E. 337

KING

v.INLAND STEEL CO.¹

No. 21,870.

Supreme Court of Indiana.

Nov. 2, 1911.

Appeal from Superior Court, Lake County; V. S. Reiter, Judge.

Action by Martin S. King against the Inland Steel Company. From a judgment for defendant on demurrer to the complaint, plaintiff appeals. Reversed, with directions.

Transferred from the Appellate Court under Burns' Ann. St. 1908, § 1405 (Acts 1901, c. 259).

F. N. Gavit and J. E. Westfall, for appellant. L. L. Bomberger and J. A. Bloomingston, for appellee.

COX, J.

This appeal is in an action brought by appellant against appellee, to recover damages for personal injuries. A demurrer was sustained to appellant's amended complaint by the lower court, and that ruling is assigned by appellant as error.

[1] Counsel for appellee make the point that the appellant has not presented a record to this court which presents the question.The transcript contains the entry of the filing of the amended complaint, the amended complaint, the entry showing the filing of appellee's demurrer to it, the demurrer, the ruling of the court sustaining the demurrer, and appellant's exception thereto, appellant's refusal to plead further, and the judgment. It is contended that, as appellant's counsel specifically directed the clerk what parts of the record to copy into the transcript, only such entries and papers are properly parts of the record. The general rule is as stated, in so far as entries and papers are concerned which are independent and distinct from those specifically directed by the præcipe to be incorporated in the transcript. Reid v. Houston (1874) 49 Ind. 181;Allen v. Gavin (1891) 130 Ind. 190, 29 N. E. 363;Workman v. State ex rel. (1905) 165 Ind. 42, 73 N. E. 917.

Here the præcipe called for “a transcript containing plaintiff's amended complaint, defendant's demurrer thereto, the ruling of the court in sustaining defendant's demurrer to plaintiff's amended complaint, plaintiff's objection and exception to the ruling of the court in sustaining defendant's demurrer to plaintiff's amended complaint, and the final judgment” in the cause. The clerk has also incorporated the entries incidental to the amended complaint and the demurrer thereto, showing the filing of them. It is contended by counsel for appellee that the entries showing the filing of the amended complaint and the demurrer, not having been called for by the præcipe, are improperly in the trans-script and cannot be considered, and therefore the record, not showing that the amended complaint and the demurrer thereto were ever filed, no question on the ruling complained of is presented. The objection to the state of the record is highly technical, and, moreover, clearly not within the general rule above stated. The entries incorporated in the transcript without specific directions in the præcipe therefor are purely incidental to the parts of the record called for, and in such case the rule is that the præcipe is to be given a liberal construction, and such entries will be deemed to be impliedly embraced in the specific directions. Allen v. Gavin, supra.

The amended complaint is based on the failure of appellee to guard certain uncovered cogwheels, as required by section 9 of the factory act of 1899, being section 8029, Burns' 1908, and is as follows: “The plaintiff for amended complaint complains of defendant, and says that defendant is a corporation duly organized as such; that at the time plaintiff received the injuries hereinafter alleged, and for more than two years prior thereto, defendant was engaged in operating a certain rolling mill in the city of East Chicago, in said county, and in the manufacture of iron and steel therein, and plaintiff was employed by defendant to work in and about said rolling mill and acting in the course of his said employment. That at the time plaintiff received his said injuries, and for more than two years prior thereto, defendant continuously maintained in said rolling mill a certain set of gearing, consisting of cogwheels, so placed that the cogs in each of them fitted into the spaces between the cogs in each of the others, which cogwheels when in operation were caused to revolve rapidly by steam power. That said cogwheels were elevated above the floor of said rolling mill 13 inches, and in the operation of said rolling mill the plaintiff and other workmen were required to work at and near the same while the same were revolving. That defendant carelessly and negligently maintained said cogwheels, and required plaintiff and others to work at and near the same, without having any covering or guard or other protection to prevent plaintiff and such other workman from coming into contact with the same while in motion, and carelessly and negligently failed to properly guard said cogwheels in any manner whatever. That said cogwheels could be guarded, and it was perfectly feasible, practicable, and possible to guard the same without in any way interfering with the efficiency of said cogwheels or the machinery turned by the same, or any part of the machinery in said rolling mill. That is was so feasible, practicable, and possible to properly guard said cogwheels or gearing by placing a covering over the same. That on the 28th day of February, 1907, plaintiff in the course of his said employment was required to and did step upon a certain piece of iron projected and raised six inches above said cogwheels, and near to the same, in order that he might adjust some machinery over said cogwheels, and did so step upon said projecting piece at a time when said cogwheels were not in motion, and were not expected to be put in motion until plaintiff should complete his said adjustment and move his foot from said position, and while so stepping said cogwheels were by defendant caused to be put in motion, without any notice or warning to plaintiff, and plaintiff's said foot slipped from said piece of iron and into said cogwheels while in motion, and when plaintiff's said foot had so slipped into said cogwheels said cogwheels continued to revolve, and did so crush, bruise, and injure his said foot that it became necessary, in order to save plaintiff's life, that the leg of his said foot be amputated at a point two inches above the ankle joint, and said leg was so amputated at said joint, in order to save plaintiff's life. That the injury to plaintiff was caused by the carelessness and negligence of defendant in failing to guard said cogwheels and in operating the same without guard. That by reason of his injury, sustained as aforesaid, plaintiff became and was sick, sore, and lame, and has so continued to the present time, and will so continue through life; has lost his said foot and leg; has been unable to do any work or labor from the time of his injury to the present time, and will so continue during life; has suffered great pain and anguish, both of body and mind, and will so continue to suffer during life. That his said injury has brought about a humiliating appearance.” Following these allegations are others, showing the age of appellant, his earning capacity, and the expenses which he had incurred by his injuries, and a demand for judgment.

[2][3] The first criticism of the amended complaint pressed by counsel for appellee is that it does not allege that the uncovered cogs were dangerous. This was not necessary. The statute expressly impresses on cogs the character of dangerous machinery, and requires that they shall be guarded for the protection of employés. Monteith v. Kokomo, etc., Co. (1902) 159 Ind. 149, 153, 64 N. E. 610, 58 L. R. A. 944;Hohenstein, etc., Furn. Co. v. Matthews (1910 App.) 92 N. E. 196. In this complaint it is alleged that appellee maintained a gearing consisting of cogwheels 13 inches above the floor, without covering or guards or other...