Knickerbocker Ice Co. v. Gray

• Decision Date: 09 April 1908
• Docket Number: No. 21,077.,21,077.
• Citation: 84 N.E. 341,171 Ind. 395
• Parties: KNICKERBOCKER ICE CO. v. GRAY.
• Court: Indiana Supreme Court

171 Ind. 395

84 N.E. 341

KNICKERBOCKER ICE CO.

v.GRAY.

No. 21,077.

Supreme Court of Indiana.

April 9, 1908.

Appeal from Superior Court, La Porte County; H. B. Tuthill, Judge.

Action by George Gray against the Knickerbocker Ice Company. Judgment for plaintiff, and defendant appeals. Affirmed.Stuart MacKibben, for appellant. Crumpacker & Moran, for appellee.

MONTGOMERY, J.

This is an appeal from a judgment of $9,000 recovered by appellee for a personal injury sustained on account of negligence while in appellant's employ. A former judgment was reversed by this court (165 Ind. 140, 72 N. E. 869), and thereafter the complaint was amended and the issues reformed. The first paragraph of amended complaint is in substance as follows: That at the time stated appellant was a corporation, engaged in the ice business, and the owner and operator of three icehouses on the shore of Wolfe Lake, Ind., and of the machinery, engines, and appliances used in connection therewith. That in the months of January and February, 1901, there were two steam engines which furnished the motive power for running the machinery in one of these icehouses, designated as No. 3. The larger of these engines was situated in a brick engine room adjacent to the icehouse, and the other in a smaller house located about 250 feet therefrom, furnishing power to run a slush carrier. That on February 21, 1901, appellee was, and had been continuously for more than one month prior thereto, employed by appellant as stationary engineer in charge of the larger of said engines. That it was his sole duty to run and care for the same, and he had no connection with or control over the smaller or slush carrier engine, which was in charge of a separate and independent engineer. That for four weeks prior to the accident appellant negligently and carelessly permitted its slush carrier engine to become defective and unfit for use in that its bearings, journals, and slides were loose, worn out, and defective, its oil cups and holders leaky and defective, and that said engine was without oil pans and drains to catch waste oil, which equipment is necessary and usual. That for many months prior to the date of the injury appellant negligently and carelessly permitted the floor on the west side of said engine to become irregular and sloping from the base of the engine towards the west side of the engine room. That on account of the condition of said engine said sloping floor became covered with a thick coating of grease and oil, and on said date, and for more than a week prior thereto, on the west side of said engine, and for a distance of more than 2 feet therefrom, there had been oil upon the floor one-half inch in thickness. That said engine was used in the reverse motion, which caused the counter balances to revolve within a quarter of an inch of the side frames of the engine. That the movement of the counter balances and the sloping and slippery condition of the floor made the engine room extremely dangerous and unsafe, and created an extraordinary and unusual condition not to be expected or anticipated. That appellant actually knew of said conditions and the extraordinary dangers and risks arising therefrom for more than a week prior to appellee's injury, and might have repaired said floor and engine and made the same safe, but wholly neglected and failed so to do, and negligently and carelessly continued to use said engine, and negligently permitted said grease and oil to remain and to accumulate on said floor. That appellee did not know of any of said conditions, nor of the extraordinary dangers and hazards arising therefrom, and appellant knew or ought to have known that appellee was ignorant of said conditions and extraordinary dangers. That said engine room was dark and poorly lighted, so that the presence of said oil on the floor was not discoverable by the exercise of ordinary care. That on the 21st day of February, 1901, appellant, through its lawfully authorized agent, Ernest Hart, who was its chief engineer in charge of all of its engines and machinery, under whom appellee was working, and whose orders he was at the time bound to obey, negligently and carelessly ordered appellee from his usual place of employment into the dangerous engine room, and negligently and carelessly failed to give him any notice of the extraordinary dangers and hazards in said engine room, and of the fact that the engine was defective, old, and worn out, and the floor sloping, oily, and greasy. That appellee had no knowledge of these facts and conditions as appellant well knew. That in obedience to said order appellee went into said engine room, and upon said oily, greasy, sloping, and unsafe portion of the floor, and near to said downward revolving counter balances, and while in said room, and in the performance of his duties, appellee's feet slipped out from under him on account of the greasy and slippery condition of the floor, and in falling he was thrown against the engine, and his arm caught between said counter balances and crushed off at a point above the wrist, all of which is alleged to be the result of appellant's negligence in permitting the floor to be and remain in the condition described, and the engine to be operated in the backward or reverse motion. The third paragraph of the amended complaint is substantially the same as the first, but omits the charge that appellant negligently and carelessly failed to give appellee any warning or notice of the extraordinary dangers to which he would be exposed by entering the slush carrier engine room. It is alleged that appellee's injuries were caused by the negligence and carelessness of appellant in permitting and suffering the engine room floor on the west side of the engine to become, be, and remain sloping, and slippery from the presence of oil, which condition was caused by the defective and ill-kept condition of the engine, and because of the fact that appellant negligently and carelessly operated said engine in the backward or reverse motion in such manner that the counter balances revolved from above downward. Appellant's motion to make the complaint more specific and to separate the causes of action pleaded, and its demurrer to each paragraph upon the ground of insufficient facts, were successively overruled. Appellant answered by general denial, and a jury trial resulted in a verdict for appellee, upon which, after overruling a motion for a new trial, judgment was rendered.

The errors assigned and urged upon our consideration challenge the decisions of the court in overruling appellant's motion to require each paragraph of the amended complaint to be made more definite and specific, the motion to require appellee to state in separate paragraphs and number his several causes of action, the demurrer to each paragraph of amended complaint, and the motion for a new trial.

Each paragraph of the amended complaint alleged that appellee was taken from his usual place of employment and sent into the engine room, averred to be unsafe and dangerous, by appellant, in obedience to an order of its lawfully authorized agent, Ernest Hart, who was its chief engineer in charge of all of its engines and machinery, and whose orders appellee was at the time bound to obey. Appellant sought to have this part of the complaint made more specific by showing the position occupied by Hart in appellant's service, his relation to appellant and to appellee, and the power, duty, and authority delegated to him by appellant. In support of this motion appellant cites and relies upon the case of Pittsburgh, etc., R. Co. v. Adams, 105 Ind. 151, 5 N. E. 187. In that case the allegation was not, as in this, that the defendant did the negligent act, but only that plaintiff was “ordered by Patrick Clary, a person standing towards plaintiff in the relation of superior in the employ at defendant,” and the court very properly said: “It does not necessarily follow that because the persons giving the orders stood towards appellee in the relation of superior in the employ of appellant they had authority or the semblance of authority to order him to do the braking and coupling. They may have been superior in rank, and yet without authority, or the semblance of authority, to give such orders.” The charge in this case is that appellant issued the negligent order itself, and communicated it through Hart, its authorized agent, to whose orders and directions appellee was bound to yield obedience. This was clearly sufficient as a matter of pleading to apprise appellant of the charge which it was required to meet. Appellant is presumed and held to know what officers and agents it had in connection with this ice plant, and the duty and extent of authority assigned to each, and it is a well-settled rule that the plaintiff is not required to plead specifically facts which are peculiarly within the knowledge of the defendant. Louisville, etc., R. Co. v. Crunk, 119 Ind. 542, 21 N. E. 31, 12 Am. St. Rep. 443;Indiana Bicycle Co. v. Willis, 18 Ind. App. 525, 48 N. E. 646. It follows that the court did not err in overruling the motion to require the complaint to be made more specific.

The motion to paragraph the complaint alleged that each of the paragraphs of amended complaint contained four separate and distinct causes of action, to wit: Common-law actions (1) for failure to furnish a safe place in which to work, and (2) failure to furnish safe machinery with which to work; and, statutory actions (3) for the negligence of appellant's servant to whose order appellee was bound to and did conform, and (4) injury resulting to appellee while obeying the particular instructions of a person delegated with the authority of appellant in that behalf. In our opinion no attempt was made to state a cause of action under the employers' liability statute, but the allegations with respect to the orders of Hart were material and necessary to show that when injured appellee...