Kintz v. Johnson

• Decision Date: 21 December 1906
• Docket Number: 5,834
• Citation: 79 N.E. 533,39 Ind.App. 280
• Parties: KINTZ v. JOHNSON
• Court: Indiana Appellate Court

79 N.E. 533

39 Ind.App. 280

KINTZ v. JOHNSON

No. 5,834

Court of Appeals of Indiana

December 21, 1906

From Vigo Circuit Court; James E. Piety, Judge.

Action by Edward S. Johnson against Norbert C. Kintz. From a judgment on a verdict for plaintiff for $ 500, defendant appeals.

Reversed.

Stimson & Condit, for appellant.

W. T Gleason, H. S. Wallace and Henry, Crane & Miller, for appellee.

COMSTOCK J. Myers, C. J., Wiley, P. J., Robinson and Black, JJ concur. Roby, J., absent.

OPINION

COMSTOCK, J.

Appellee recovered judgment against appellant in the sum of $ 500 for injury to his person. The errors assigned question the action of the court in overruling appellant's demurrer to the complaint and in overruling his motion for a new trial. The complaint is in one paragraph. It alleges, in substance, that the defendant, at the time of the plaintiff's injury, owned and operated a planing-mill in Terre Haute, Indiana, and had in said mill, as a part of the machinery, a certain circular saw, known as a "ripsaw," which was run by steam-power by means of belting and shafting; that the saw was extremely dangerous, and that the defendant had negligently failed to place any guard or cover over or about the saw to protect employes from danger while using it; that the plaintiff, at the time of the injury, was an employe of defendant, and was directed, by defendant's foreman, to use said saw while it was in the unguarded and dangerous condition; that while so using the saw, without fault or negligence on the part of the plaintiff, but wholly because defendant failed to place a guard over the saw as required by law, the plaintiff's hand was caught by the saw, and his fingers were cut and mangled so that he was permanently disabled from carrying on his usual occupation. A demurrer to the complaint, for want of facts, was overruled, and the cause put at issue by general denial.

Appellant argues that the facts stated do not constitute a cause of action under the statute, for the reasons: (1) Because it is not alleged, either in the words of the statute or in equivalent language, that the saw was not properly guarded; (2) it is not alleged that the proposed guard, cover, protector, automatic feed, machine, or appliance, such as is commonly used in the operation of such saws, would diminish the danger, or would not imperil the usefulness or work of the machine or its operation. The complaint is founded on § 7087i Burns 1901, Acts 1899, p. 231, § 9. It alleges that the saw was dangerous; that it could have been made safe by a suitable guard; that the defendant wholly failed to place any guard, cover, or protection of any kind over or about the saw, and negligently permitted it to be and remain and be operated while in the dangerous condition aforesaid. The allegation that the defendant failed to place any guard or protection of any kind over or about the saw sufficiently states a violation of § 7087i, supra. Blanchard-Hamilton Furniture Co. v. Colvin (1904), 32 Ind.App. 398, 69 N.E. 1032, and cases cited.

As to the second objection, it has been held under the statute in question that the burden of showing by a pleading that it is possible or practicable properly to guard a particular machine in question, without rendering it useless for the purpose for which it was intended to be operated, is upon the plaintiff. Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 75 N.E. 277; National Fire Proofing Co. v. Roper (1906), 38 Ind.App. 600, 77 N.E. 370; Robertson v. Ford (1905), 164 Ind. 538, 74 N.E. 1.

The complaint alleges that the "saw could easily...