Morgantown Mfg. Co. v. Hicks
| Citation | 46 Ind.App. 623,92 N.E. 199 |
| Decision Date | 29 June 1910 |
| Docket Number | No. 6,894.,6,894. |
| Parties | MORGANTOWN MFG. CO. v. HICKS. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Morgan County; J. W. Williams, Judge.
Action by Willard Hicks against the Morgantown Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.
See, also, 43 Ind. App. 32, 86 N. E. 856.
James Bingham, for appellant. Willis Hickam and E. M. McCord, for appellee.
Appellee brought this action against appellant to recover damages for personal injuries alleged to have been sustained by him while in appellant's employ working in a furniture factory, ripping timber on an unguarded circular saw operated by steam power, by his hand being jerked and thrown against said saw, by reason of which he sustained the injuries set out in the complaint.
The negligence charged was the failure of appellant to guard said saw as required by the provisions of what is known as the “Factory Act” (sections 8028, 8029, Burns' Ann. St. 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 a failure of appellee to obey instructions to attach, and keep attached, to the saw in question a certain split, spreader, 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 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 motion for a new trial relate to the admission and rejection of evidence and the giving of certain instructions; that the damages assessed by the jury are excessive; that the verdict of the jury is not sustained by sufficient evidence, and is contrary to law; 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 in the complaint that at the very time that 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 are statements in the complaint tending to show that appellant used a saw in a certain factory owned by it, but it is insisted that these are narrative only, and relate to a time when appellee was not injured; that the absence of these averments renders the complaint wholly insufficient.
Section 8029 of the act referred to 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, saw, *** while the same is in use, unless for the purpose of immediately making repair thereto, and all such safeguards shall be promptly replaced when reasonably practicable 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, 165 Ind. 290, 75 N. E. 277;National Fire Proofing Co. v. Roper, 38 Ind. App. 600, 77 N. E. 370;Robertson v. Ford, 164 Ind. 538, 74 N. E. 1. It is true that general allegations must be stronger than to merely suggest an inference. They must be so strong as to enforce the inference if necessary. Erwin v. Central Union Tel. Co., 148 Ind. 365, 46 N. E. 667, 47 N. E. 663;Brown v. Brown, 133 Ind. 476, 32 N. E. 1128, 33 N. E. 615;Cummins v. City of Seymour, 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, 159 Ind. 557, 65 N. E. 753.
Having in view the foregoing propositions, a reference to the complaint discloses the following averments: That on the 1st day of April, 1907, defendant was, and for some months prior thereto had been and was, a corporation duly organized and operating under and pursuant to the laws of the state of Indiana; that said defendant on said 1st day of April, 1907, and during all of said times was and has been in the business of manufacturing tables, boxes and furniture of various sorts; that on said 1st day of April and for a number of days prior thereto, he (plaintiff) was in the employ of appellant; that his duties as such servant and the purpose for which he was by defendant employed was to do general work about said factory, and, when called upon so to do, to operate and use 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 their business and in their factory, which was during all of said times located and operated in the town of Morgantown, in the county of Morgan, and state of Indiana. That said saw was about 10 inches in diameter and was set and revolved in a slot in the top of said table so that about 2 1/2 inches of the same extended and projected above the top of said table; that a belt underneath said table was so attached to cylinder on which said saw was placed and with 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 the defendant in the furniture manufactured by them; that there was a gauge on the top of said table and the right side of 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 of the timber sawed are set out with particularity.) The complaint further alleged that it was necessary to a safe operation of said saw that the top part, extending above the top of said table, should be properly protected and guarded by the use of a guard for the protection of the hands and arms of the operator from coming in contact with said saw; that when used without said guard it was dangerous; that during the whole 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, the 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. It is further averred that on said 1st day of April, while at work for the defendant, he 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 the use of 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 the same against said saw, it was necessary for him to hold the same by placing his hands in front of, and near, said saw; that while thus holding said piece of timber and guiding the same, it was suddenly and with much force jerked and thrown forward, thereby jerking and throwing plaintiff's hands against said saw (describing his injuries). And that all of said injuries were caused by said defendant in negligently failing to have said saw...
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