Morgantown Manufacturing Co. v. Hicks
| Citation | 92 N.E. 199,46 Ind.App. 623 |
| Decision Date | 29 June 1910 |
| Docket Number | 6,894 |
| Parties | MORGANTOWN MANUFACTURING COMPANY v. HICKS |
| Court | Indiana Appellate Court |
Rehearing denied October 25, 1910. Transfer denied December 15, 1910.
From Morgan Circuit Court; Joseph W. Williams, Judge.
Action by Willard Hicks against the Morgantown Manufacturing Company. From a judgment for plaintiff, defendant appeals.
(For decision on appeal from order correcting bill of exceptions see 43 Ind.App. 32.).
Affirmed.
James Bingham, for appellant.
E. M McCord and Willis Hickam, for appellee.
While working in appellant's furniture factory, ripping timber on an unguarded circular saw operated by steam-power, appellee's hand was jerked and thrown against said saw, whereby he was injured, and he brought this action against defendant to recover damages for said injuries.
The negligence charged was the failure of appellant to guard said saw, as required by the provisions of sections eight and nine of what is known as the factory act (Acts 1899 p. 231, §§ 8028, 8029 Burns 1908).
A demurrer for want of facts to the one paragraph of complaint was overruled, and appellant answered in two paragraphs; the first being a general denial, and the second alleging that appellee failed to obey instructions to attach and keep attached to the saw in question a certain split, spread or guard, and that the injury complained of was the result of such failure.
A demurrer to said second paragraph of answer was overruled and a reply filed in general denial. On the issues formed the case was submitted to a jury and a verdict returned in favor of appellee in the sum of $ 2,500. Appellant's motion for a new trial was overruled and judgment rendered on the verdict. Certain interrogatories were propounded to, and answered by, the jury.
The first and second specifications of error challenge the sufficiency of the complaint, and the third, the action of the court in overruling appellant's motion for a new trial. The reasons set out in the motion for a new trial relate to the admission and rejection of evidence and the giving of certain instructions. Other reasons set forth are that the damages assessed by the jury are excessive; that the verdict is not sustained by sufficient evidence and is contrary to law; and that the answers of the jury to a number of interrogatories are not sustained by sufficient evidence and are contrary to law.
The first and second specifications of error may properly be considered together. The objection urged to the complaint is that there is no allegation that, at the very time appellee sustained his injuries, the saw he was operating was in a manufacturing establishment or other place mentioned in the factory act. It is conceded that there is a statement in the complaint tending to show that appellant had in use a saw in a certain factory owned by it, but it is insisted that this is narrative only, and relates to a time when appellee was not injured; and that the absence of these averments renders the complaint wholly insufficient.
Section 8029, supra, makes it the duty of the owner, agent, superintendent or other person having charge of any manufacturing or mercantile establishment, or any floor or part thereof, to keep all saws therein properly guarded, and no person shall remove or make ineffective any safeguard around or attached to any planer or saw while it is in use, except for the purpose of immediately making repairs thereto, and all such safeguards shall promptly be replaced, when reasonably practicable so to do. It is true, as claimed by appellant, that the statute in question is highly penal in its nature, and in a complaint, charging a failure to comply with its provisions, intendments or inferences cannot be resorted to to supply omissions of material facts. 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.
It is also true that general allegations must be stronger than merely to suggest an inference. They must be so strong as to enforce the inference if necessary. Erwin v. Central Union Tel. Co. (1897), 148 Ind. 365, 46 N.E. 667; Brown v. Brown (1893), 133 Ind. 476, 32 N.E. 1128; Cummins v. City of Seymour (1881), 79 Ind. 491, 41 Am. Rep. 618. The material facts necessary to be averred must not be left to inference. McElwaine-Richards Co. v. Wall (1902), 159 Ind. 557, 65 N.E. 753.
Having in view the foregoing propositions, a reference to the complaint discloses the following averments: That on April 1, 1907, defendant was, and for some months prior thereto had been, a corporation duly organized and operating under and pursuant to the laws of the State of Indiana; that said defendant was on said April 1 and during all of said time had been, in the business of manufacturing tables, boxes and furniture of various sorts; that on said April 1, and for a number of days prior thereto, plaintiff was in the employ of defendant; that his duties, and the purpose for which he was by defendant employed, required him to do general work about said factory, and, when called on so to do, he was to operate a small circular saw placed in a table and driven at a high rate of speed by steam, which saw was then and there used by defendant in its business and in its factory, which was, during all of said time, located in the town of Morgantown, Morgan county, Indiana; that said saw was about ten inches in diameter, and revolved in a slot in the top of said table, so that about two and one-half inches of the saw projected above the top of said table; that a belt underneath said table was so attached to a shaft, operating said saw, and was so driven by steam-power used in said factory, that when in use said saw revolved with great rapidity; that said saw was used for the purpose of sawing and ripping pieces of timber used by defendant in the furniture manufactured by them; that there was a gauge on the top of said table and on the right side of such saw, used to regulate the width and thickness of the strips into which pieces of timber were to be ripped. (Here the position of the one operating said saw, with reference to the table and the manner of holding and guiding the timber sawed, is set out with particularity.) The complaint further alleged that it was necessary, to a safe operation of said saw, that the part extending above the top of said table should be properly protected by a guard, so that the hands and arms of the operator should not come in contact with said saw; that when used without said guard it was dangerous; that during the time plaintiff was employed there was a defect in the machinery used by him, which was known by defendant, and which consisted of the absence of a guard over said saw, defendant having negligently failed to provide any guard; that it was at all times practicable to maintain a good and sufficient guard over said saw, without in any manner interfering with the use thereof for the purposes for which it was operated, or in any manner interfering with the work being done thereon by plaintiff, when injured as complained of; that on April 1, while at work for defendant, plaintiff was directed by his foreman to use said saw, which was not guarded, to rip pieces of timber into strips for the use of defendant in its said business; that he obeyed said instructions, and, while using said saw, was at all times using reasonable care and diligence to avoid and save himself from injury, and while thus engaged, and while holding a piece of timber and guiding it against said saw, it was necessary for him to hold said timber by placing his hands in front of and near to said saw; that while thus holding and guiding said piece of timber it was suddenly and with much force jerked and thrown forward, thereby jerking and throwing plaintiff's hands against said saw; that all of his described injuries were caused by the negligence of said defendant in failing to have said saw properly guarded, and in using said saw without a guard.
These allegations, we think, sufficiently show that defendant was operating a factory and that plaintiff was employed therein that said saw was a dangerous part of the machinery used; that it could have been guarded without interfering with its practical use; that by reason of the absence of any guard plaintiff received his injuries; that the work in which he was engaged was under the direction of appellant. While some allegations may consist of conclusions or be by way of recital, there are sufficient averments directly made to...
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