McElwaine-Richards Company v. Wall
| Decision Date | 08 December 1905 |
| Docket Number | 20,591 |
| Parties | McElwaine-Richards Company v. Wall |
| Court | Indiana Supreme Court |
Rehearing Denied March 6, 1906.
From Tipton Circuit Court; B. F. Harness, Judge pro tem.
Action by John Wall against the McElwaine-Richards Company. From a judgment on a verdict for plaintiff for $ 2,500, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Reversed.
Shirts & Fertig, Beauchamp, Mount & Procter and E. E Stevenson, for appellant.
William S. Christian, Ernest E. Cloe and Gifford & Gifford, for appellee.
This action was brought in the Hamilton Circuit Court by appellee to recover damages for a personal injury sustained while in appellant's employ. The venue was transferred to the Tipton Circuit Court, and, upon appeal from a judgment rendered therein, this court held the original complaint insufficient. McElwaine-Richards Co. v Wall (1902), 159 Ind. 557, 65 N.E. 753. An amended complaint, consisting of two paragraphs, was subsequently filed, and demurrers to the same were overruled. The issues were closed by an answer in general denial, and a trial by jury resulted in a verdict and judgment for appellee.
Appellant alleges that there was error in overruling demurrers to each paragraph of amended complaint, in overruling appellant's motion for judgment upon the answers of the jury to interrogatories submitted, notwithstanding the general verdict, and in overruling the motion for a new trial.
Both paragraphs of the amended complaint proceed upon the theory that a cause of action exists in appellee's favor by virtue of the provisions of the employers' liability act of March 4, 1893 (Acts 1893, p. 294, § 1, § 7083 Burns 1901). Appellant's counsel challenge the constitutionality of that act so far as it relates to private corporations. The amendments to the original complaint obviated the defects pointed out by this court, and if the provisions of the act in question are valid as against appellant, a cause of action is exhibited in each paragraph of the amended complaint. But assuming the constitutional validity of the act and the sufficiency of the complaint, upon the facts found by the jury no cause of action exists in appellee's favor, and we will therefore not discuss the complaint further or determine the constitutional question suggested. Hodges v. Standard Wheel Co. (1899), 152 Ind. 680, 52 N.E. 391.
The jury, in answer to interrogatories, found the following facts: Appellee was employed by the appellant to do general work in and about the construction of an addition to the building in which it carried on the business of a foundry, and the work he was doing at the time he was injured was in the line of his employment, and of the same general nature as the other work in which he had been engaged. He had been at work under said employment in and about the place where he received his injury for eight and one-half days immediately prior thereto. There was no agreement that he should be assigned to any particular service or duty. He was a man of mature years, of ordinary intelligence, strength and agility, and in full possession of all his mental faculties, physical powers and senses. During his employment he had been engaged in tearing down a part of the wall of appellant's building where the addition was to be constructed, and in erecting posts or props to support the roof while said wall was removed, in placing posts in position, in nailing on sheathing and in taking down scaffolds in connection with the work in which masons and carpenters were engaged. He was injured by the falling of a truss which was in process of construction in the progress of said work, said truss consisting of a chord nineteen feet long, eight inches wide and ten inches thick, made of wood, and of two braces framed on top of said chord, and extending upward from each end thereof, meeting at the center in the form of a gable about seven feet high, with two other braces framed on said chord near the center, and extending upward to meet said other braces at right angles, with bolts or iron rods reaching from the lower part of said chord to the points of union of said braces above--the whole weighing about seven hundred pounds. The chord of said truss was about ten feet from the ground, its west end rested on a brick pilaster in the wall of the building, and the east end on a post of the same dimensions as said chord, and said truss, as constructed, stood at right angles to said brick wall. A similar truss had been constructed and raised on like supports, the same distance from the ground, sixteen feet south of said truss, and had been securely fixed by other framework, which had been placed in position immediately south of it and attached thereto. A temporary scaffold had been constructed for workmen engaged in putting in the braces and rods of said chord, by placing joists two inches thick and ten inches wide, one on top of another, and extending from the chord of said south truss to the chord of said north truss, and no timber or framework other than said post and said joists touched said north truss. There was another post immediately east of the one on which the east end of said chord rested, which extended upward and against the east end of said chord, and no lateral brace had been provided to hold said north truss in an upright position prior to said injury. There was one course of brick on each side of the end of said chord, resting on said pilaster up to the top of said chord, forming a recess in which the end of said chord rested, open at the top so that the end of said chord could be seen from above. There was no roof or covering over said north truss, all of the parts thereof, except so much of the west end as extended into the brick recess and the east end abutting against said higher post, and so much of the bottom of the chord as rested on said post beneath, were exposed to view, and the fact that said truss was not provided with any lateral brace was readily to be seen by any one near the same or on said joists. Said truss had a sufficient bearing and support to maintain it in an upright position as it was constructed and stood, without danger of falling, unless it was pushed or pulled over by some lateral force, and said trusses were intended to support the floor of an elevator coke bin which had not then been constructed.
Just prior to the time appellee was injured appellant's superintendent, Hinds, directed him and John McClain, a colaborer, to take down said joists, but did not give appellee any particular instruction as to the manner in which said work should be done, or direct what part of said work should be done by appellee or by said McClain. After receiving such order appellee climbed upon said joists at the north end next to said north truss and proceeded to push said joists endways, one at a time, southward over said south truss to his assistant, taking a position with one foot on the chord of the north truss and the other on the end of one joist resting on said chord, which made it impossible for him to stand in an upright position. The weight of appellee's body and of the joist which he was so lifting pulled said truss over to the south, and caused the same to fall toward him, and thereby caused the injury of which he complains. No one directed appellee to stand in the position in which he was standing at the time said truss fell, and neither appellant nor its superintendent had any knowledge before the injury of the manner in which appellee was proceeding to remove said joists, or of the position in which he was standing. Appellant employed R. M. Hinds, a contractor and builder, to prepare plans for and to construct said addition to said foundry, and agreed to furnish the material therefor, and to pay said Hinds by the day for said work, and said Hinds was given full charge of said work, and, in accordance with said contract and arrangement with appellant, employed appellee. No officer or agent of appellant's except said Hinds took any part in directing the laborers or the manner of framing or putting up any part of said addition. The...
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