Laporte Carriage Company v. Sullender

• Decision Date: 06 October 1905
• Docket Number: 20,716
• Parties: Laporte Carriage Company v. Sullender, by Next Friend
• Court: Indiana Supreme Court

75 N.E. 277

165 Ind. 290

Laporte Carriage Company v. Sullender, by Next Friend

No. 20,716

Supreme Court of Indiana

October 6, 1905

From Laporte Circuit Court; John C. Richter, Judge.

Action by John H. Sullender, by his next friend, against the Laporte Carriage Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under subd. 2 § 1337j Burns 1901, Acts 1901, p. 565, § 10.

Reversed.

Frank E. Osborn and W. A. McVey, for appellant.

Ellsworth E. Weir, Philo Q. Doran and Elias D. Salsbury, for appellee.

OPINION

Jordan, J.

This action was commenced by appellee, a minor, by next friend, to recover damages alleged to have been sustained by reason of the loss of an eye while in the employ of appellant as its servant. The amended complaint, upon which the cause was tried, consists of two paragraphs, to each of which a demurrer for want of facts was overruled. Answer, general denial. Trial by jury, with a verdict in favor of appellee awarding him $ 3,000, upon which judgment was rendered over appellant's motion for a new trial.

The errors assigned and relied on for a reversal are (1) overruling the demurrer to each paragraph of the amended complaint; (2) overruling the motion for a new trial.

The first paragraph of the complaint in substance alleges: That the defendant is a corporation duly organized and existing that on February 5, 1902, the plaintiff was a minor, of the age of fourteen years, residing with his father, and on said day he was in possession of perfect eyesight in both of his eyes, and was free from physical infirmities; that he was a boy of the usual size, growth and development of one of his age, which fact was patent to an ordinary observer; that on said day the plaintiff was employed by the defendant to serve or act as an errand boy and to perform general work about the defendant's factory, and was, by the foreman of the department in which he was put to work, instructed to bring materials from the stock-room to various places and to the workmen in said department; that subsequently on said day the plaintiff "was instructed by said foreman to work at putting up 'reaches,' and, obeying the instructions of the foreman, he at once proceeded to and did perform the work thus assigned to him." The paragraph then alleges: "That neither at the time of his employment nor while so employed by defendant was any inquiry whatever made as to his age, knowledge of the work he was about to undertake, experience in factories where machinery was employed, or his physical ability to perform the labor he was about to engage in, nor was he informed by the defendant or any of its officers or representatives of the dangers incident to his employment, or instructed as to the best and safest manner in which to perform the labor he was to undertake, or of the danger or possibility of injury by reason of the proximity of machinery to the place where he was to perform his labor; but, on the contrary, without information or instructions, and without any knowledge on his part of any danger of injury to him, he was by said foreman placed at work within ten or fifteen feet of what is commonly known as an 'emery belt,' used by the defendant for polishing and finishing metal parts of the wagons and buggies which said defendant is engaged in making, at a point where he was exposed to flying particles of emery and metal, and without any protection whatever from said flying particles; that the defendant must have known and did know of the likelihood of said particles' being thrown by said emery by reason of the constant friction, but did not protect said belt or the place where plaintiff was engaged at work with any screen or other device to prevent injury to him or other employes who were passing said place, as required by law to be done; that on the 6th day of February, the same being the second day of his employment, and while he was still ignorant of the danger of his employment and of the dangerous character of the place where he was engaged at work, while actually engaged in the work which he was instructed to perform, this plaintiff was struck in the eye with a flying particle of emery or metal, thrown off by said emery belt; that said emery or metal penetrated the pupil of said eye, destroying the sight, and rendering the plaintiff blind in said eye, causing him great suffering and discomfort." It is further averred that by reason of said injury "plaintiff was compelled to and did enter a hospital where an operation was performed on his eye, the latter being removed; that he suffered great pain and agony, and that great danger exists that the injury will affect his other eye and thereby render it necessary to have the same removed." The paragraph closes with the averment "that by reason of the foregoing the plaintiff has been damaged in the sum of $ 5,000, for which he demands judgment."

The first and second paragraphs in some respects are substantially alike. The second, in like manner as the first, charges that the defendant is a corporation, duly organized, etc., and that on the 5th day of February, 1902, plaintiff was a minor, of the age of fourteen years, residing with his father and in possession of perfect sight in both of his eyes, and free from any physical infirmities, and on said day he was employed by the defendant to act as an errand boy to perform general work about the factory of the defendant, and in the course of his employment he was instructed by the foreman of the defendant in the department in which he went to work to bring materials from the stock-room to various places and to the workmen, which he did; that he was directed by said foreman to work at putting up "reaches," and that he proceeded to perform the work thus assigned to him. All matters relative to the failure of the defendant to make any inquiry in regard to appellee's age, knowledge and experience, as alleged in the first paragraph, are omitted. The pleading, however, alleges: "That the place where he was instructed by said foreman to work was located about ten or fifteen feet from a point where what is commonly known as an 'emery belt' was in operation; that said emery belt was used by the defendant for polishing and finishing metal parts of wagons and buggies; that the point at which he was instructed to and did work was exposed to flying particles of emery and metal; that said emery belt and the pulley over which the same ran were not protected by any screen, guard or fence, as required by law; but, on the contrary, no protection from the flying particles of emery and metal from said belt was afforded at the point where plaintiff was engaged at work under the direction of said foreman; that in the use of said belt particles of metal and emery did, as a matter of fact, fly in the direction and toward the point where plaintiff was engaged at work, and plaintiff, while actually engaged in the work which he was instructed to perform, on the second day of his employment, to wit, on the 6th day of February, was struck in the eye with a flying particle of emery or metal which was thrown off of said belt; that said emery or metal penetrated the eye, destroying the sight of the same, and rendered the plaintiff blind in said eye at the time, and thereafter caused him great physical suffering and discomfort." The pleading then, in like manner as the first paragraph, proceeds to disclose the fact that the plaintiff entered a hospital where his eye was removed, and by reason thereof he suffered great agony and pain, etc. It is then averred that by reason of the foregoing facts the plaintiff has been damaged in the sum of $ 5,000. Wherefore, he demands judgment, etc.

Counsel for appellee, in their attempt to expose what they consider to be the theory of the first paragraph of the complaint, assert: "There was charged, therefore, an unlawful hiring, want of knowledge on plaintiff's part, failure to instruct as to danger, failure to furnish a safe working place, knowledge of the danger by defendant, violation of a statutory duty in failing to guard the emery belt, the injury to plaintiff, and that by reason of the facts stated plaintiff was damaged." Counsel continuing their argument say: "The only inference to be drawn from the facts stated is that the damage suffered by appellee was caused by reason of the unlawful hiring, the failure to instruct as to dangers, the failure to furnish a safe working place, the violation of the statutory duty to guard the emery belt, and the knowledge of the danger by appellant."

In regard to the second paragraph counsel assert that it "counts upon the appellant's failure to guard the emery belt as required by law; the neglect or omission of a statutory duty, 'which, without reference to any other averment, is a sufficient charge of negligence.'"

The contention that the facts as alleged in the first paragraph disclose a case of noncompliance on appellant's part with the provisions of section two of what is known as the factory act (Acts 1899, p. 231, § 7087b Burns 1901) is wholly untenable. It would certainly require a stretch of imagination to hold that the facts as averred in the first paragraph show that appellant employed appellee in violation of the above section of the statute, and that therefore, as insisted by counsel, the employment was unlawful, or a breach of duty on the part of the employer to which the injury in question must be attributed. Section 7087b, supra declares that "No child under fourteen years of age shall be employed in any manufacturing or mercantile establishment," etc. In both paragraphs of the complaint it is expressly shown that appellee was of the age of fourteen years, therefore it is evident that he was not employed in violation of this...