Kokomo Steel and Wire Company v. Carson
| Decision Date | 09 April 1918 |
| Docket Number | 9,541 |
| Citation | 119 N.E. 224,69 Ind.App. 523 |
| Parties | KOKOMO STEEL AND WIRE COMPANY v. CARSON |
| Court | Indiana Appellate Court |
Rehearing denied June 28, 1918.
Transfer denied March 6, 1919.
From Howard Circuit Court; J. F. Morrison, Special Judge.
Action by Theodore C. Carson, by next friend, Lane Carson, against the Kokomo Steel and Wire Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Blacklidge Wolf & Barnes, for appellant.
McConnell, Jenkines, Jenkines & Stuart and Byers & Broo, for appellee.
OPINION
This is an action by appellee against appellant for damages for personal injuries. From a judgment in appellee's favor for $ 2,750, appellant appeals. The only assigned error presented by appellant in its brief relates to the action of the court in overruling its motion for judgment upon the answers of the jury to the interrogatories, notwithstanding the general verdict. The complaint is in a single paragraph, and alleges facts which brings the action within the Employers' Liability Act, Acts 1911 p. 145, § 8020a et seq. Burns 1914.
Omitting formal averments, about which there is no contention, the complaint alleges in substance that appellee was in the employ of appellant on May 13, 1914, engaged in operating one of its fence-making machines, under the direction of its servant, employe, and foreman, to whose orders and directions, under his employment, he was required to conform; that while so engaged his right foot and leg were caught in said machine and so injured as to necessitate its immediate amputation; that said fence-making machine was constructed by appellant, and consisted of a table, elevated about four feet above the floor level, having a flat surface forty-eight inches in width and sixty inches long, with certain cogs, gears and shafting attached in an L shape, leaving an opening or recess, three feet in depth and eighteen inches wide, between the same and the end of said table; that in the process of fence making strands of wire were passed over said table and so knotted or tied as to construct fencing; that in said process the operator of said machine was required to splice said strands of wire, whenever the spool containing any strand was emptied and another spool was required; that in so doing such operator would get upon the surface of said table from said opening or recess, and crawl upon his hands and knees to the wire which required splicing, and, after splicing the same, would then back off said table into said opening or recess; that the operators of such machine used said method of splicing said strands of wire with the knowledge and by the consent and direction of appellant; that on said May 13, 1914, while appellee was in the employ of appellant operating said fence-making machine it became necessary for him to splice a certain strand of wire thereon; that he crawled out of said opening or recess, got upon the top of said table on his hands and knees and spliced said strand; that during said process, the cogs and gearing aforesaid were in motion and unguarded; that after making said splice, appellee, still upon his hands and knees, was backing off the surface of said table to said opening or recess for the purpose of resuming a position on the floor to further operate said machine; that just as he reached the edge of said table, and was in the act of alighting therefrom, by reason of said cogs and gearing being unguarded and in motion, his right foot and leg were caught therein and injured; that the opening in which appellee's foot and leg were caught and injured was so located on said machine as to make it practicable to be guarded, but, notwithstanding said fact, appellant carelessly and negligently failed to guard the same.
It will be noted that the act of negligence on which appellee bases his cause of action is a failure to guard certain cogs, gearing and shafting, as required by § 8029 Burns 1914, Acts 1899 p. 231, § 9. Appellant does not claim that the machinery in question is of such a character as not to require guarding, but contends that the court erred in overruling its motion for judgment in its favor on the answers to the interrogatories, notwithstanding the general verdict, because they show: (1) That such machinery was properly guarded; and (2) that appellee was guilty of contributory negligence.
We shall first direct our attention to appellant's contention that the answers to the interrogatories show that such cogs were properly guarded. It should be noted that under the allegations of the complaint the general verdict was in effect a finding that the cogs in question were so located as to be dangerous to appellant's employes; that it was practicable to guard the same without materially impairing their use; and that they were unguarded. Appellant contends that the answers to the interrogatories are in conflict with the general verdict as to the finding that such cogs were unguarded; that such answers control the general verdict on that material finding, and hence the court erred in overruling its motion for judgment. It may be conceded, as contended by appellant, that the answers to the interrogatories show that the cogs in question were properly guarded on the west and south sides, and thus protected the operator of said fence-making machine from danger when standing on the floor in his usual place of work; that such cogs were guarded to some extent to the east side thereof, where appellee's foot was caught and injured; and that it was unnecessary for appellee to be upon such machine while the same was in motion. Such facts, however, are not necessarily in conflict with the general verdict on the finding that such cogs were unguarded. In order to justify the finding that such cogs were not properly guarded, it was not necessary that the identical injury to appellee should have been anticipated by appellant, but it was sufficient, if, by ordinary care and prudence, appellant should have known that some injury might result to some of its employes from its failure to properly guard such cogs on the east side, as well as upon the west and south sides. Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 73 N.E. 899; Hohenstein-Hartmetz, etc., Co. v. Matthews (1910), 46 Ind.App. 616, 92 N.E. 196; King v. Inland Steel Co. (1912), 177 Ind. 201, 96 N.E. 337, 97 N.E. 529; Illinois Car, etc., Co. v. Brown (1918), 67 Ind.App. 315, 116 N.E. 4; Bessler v. Laughlin (1907), 168 Ind. 38, 79 N.E. 1033.
In the instant case it should be noted that the complaint alleges that in the process of fence-making it was necessary to splice the strands of wire that passed over the table to which cogs were attached; that in so doing the operators of such fence-making machine, with the knowledge and by the consent and direction of appellant,...
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