Muncie Pulp Co. v. Hacker

• Decision Date: 25 January 1906
• Docket Number: No. 5,214.,5,214.
• Citation: 37 Ind.App. 194,76 N.E. 770
• Parties: MUNCIE PULP CO. v. HACKER.
• Court: Indiana Appellate Court

37 Ind.App. 194

76 N.E. 770

MUNCIE PULP CO.

v.HACKER.

No. 5,214.

Appellate Court of Indiana, Division No. 1.

Jan. 25, 1906.

Appeal from Circuit Court, Delaware County; Jos. G. Leffler, Judge.

Action by Edmond H. Hacker against the Muncie Pulp Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thompson & Thompson, for appellant. Geo. H. Koons and H. F. Wilkie, for appellee.

ROBINSON, J.

Appeal from a judgment for damages for personal injury. Appellant assigns errors: (a) Overruling the demurrer to the complaint; (b) overruling the motion for judgment on answers to interrogatories; and (c) overruling the motion for a new trial.

The complaint avers, in substance, that appellant is a corporation manufacturing pulp and paper, having large and extensive buildings and machinery, and on November 10, 1902, employed appellee to operate and run an engine in its factory; that one John O'Day was appellant's master mechanic, whose orders and directions appellee, as an employé of appellant in its service, was bound to conform to and obey; that appellee was employed to work for appellant by O'Day, and was put to work, under and subject to his directions, at setting valves in the engines, which work occupied about 10 days; that thereafter appellant's general superintendent ordered O'Day to put the employés, including appellee, to work at changing some pumps in the factory, which work occupied several days; that thereupon O'Day, under appellant's orders, took the employés back to the engine room, where they continued to work under O'Day's directions until between December 25, 1902, and January 1, 1903, at which time appellee was put to work for a short time laying a pipe line on appellant's factory grounds, after which he was put to work under O'Day's direction in the machine shop, where he worked until injured at different and more hazardous work, where he was required to work at an emery wheel, which was unguarded and without exhaust fans, of which hazards and dangers appellee was ignorant; that there was in the machine shop, as a part of the machinery, a mandril, with an emery wheel on each end, which wheels were used for sharpening tools and grinding off the rough edges of pieces of iron, and which, when in use, made from 800 to 1,000 revolutions per minute; that appellant had for more than a year “negligently and carelessly failed, neglected, and omitted to properly guard, or to guard at all, said certain machinery and emery wheels, or either or any of them, or to cause the same, or any of them, to be properly guarded, or to be guarded at all, by any hood, shield, or protection, or device of any kind or description, or in any manner whatever, or to provide any device or protection for shielding or protecting the face and eyes of its employés working at, and required to work at, said emery wheels,” and had “carelessly and negligently failed and neglected and omitted to provide exhaust fans of sufficient power, or any exhaust fans at all, or device of any kind for the purpose of carrying off dust and sparks and particles from its said emery wheels in and from its said manufacturing establishment where the same were being used”; that the emery wheels in operation, when unguarded, were dangerous to persons working at them and to persons doing such work as was required by appellant of its employés, which was well known to appellant, and that such wheels, when operated without any hood or protection of any kind to prevent particles of dust and iron and steel from being thrown off and against persons working at them, and without any exhaust fans or other device to carry off dust and particles set free from their operation, were dangerous, which was well known to appellant, but was not known to appellee; that he had no warning thereof from appellant, and appellant, well knowing the facts, gave him no notice or warning; that these wheels were about 12 inches in diameter and the width of the rim about 2 1/2 inches; that they could have been easily and effectually guarded by a metal hood or shield attached onto the frame on which the mandril worked, and carried around over the wheel towards the position in which the person working at it would properly stand, sufficient to arrest the sparks and particles and dust that would otherwise be carried around with the swift revolutions of the wheel and fly off at a tangent against persons working at them, or could have been otherwise guarded by properly constructed devices, which appellant, its superintendent, and agents knew; that appellant owed to its employés, required to work at such wheels, the duty properly to guard the same and prevent the danger from them unguarded, which duty appellant well knew, but neglected to perform; that the failure, neglect, and omission properly to guard the wheels and to provide exhaust fans or other sufficient device to carry off dust and particles from the wheels, and the consequent unguarded condition of the wheels, constituted a defect in the ways, works, plant, tools, and machinery in use by appellant, which was the result of such negligence on the part of appellant and of the persons intrusted by it to keep the ways, works, and machinery in proper condition; that on January 1, 1903, appellee, as such employé, while working in the machine shop, under and subject to the orders of O'Day, was ordered and directed by O'Day to take a piece of iron with rough edges and square corners to the emery wheel and grind off and smooth the ends, which order appellee was bound to conform to and obey, and did conform to and obey, and while in the act of grinding off the ends and corners thereof, and in the exercise of due diligence on his part, small particles or pieces of steel or iron, or some material, were thrown from the wheel, striking appellee in the eye, and causing pain, suffering, sickness, and the final loss of the eye, “all of which was wholly caused by the negligence of the defendant aforesaid and without any want of care and diligence on his part”; that if there had been at such time and place a proper hood, shield, or proper guard over the wheel to prevent particles from being thrown from the wheel against a person working at it, and the same had been properly provided with exhaust fans or other device to carry off dust particles, such injury would not and could not have occurred to appellee; that it was practical to operate such emery wheels with such properly constructed hood, shield, or other guard, device, or protection, and to provide the same with proper exhaust fans and other device to carry off dust and particles set free from the operation of the wheel, so that such injury could have been prevented, all of which appellant and its agents in charge of its factory well knew, but carelessly and negligently failed and omitted to do or cause to be done, whereby and by reason whereof appellee received and suffered such injury while in the exercise of due care and diligence and without any fault or negligence on his part.

In answering two sets of interrogatories the jury found substantially the following facts: “That appellant employed appellee in November, 1902; that O'Day was appellant's master mechanic, and that appellee was bound to conform to and obey his orders; that O'Day employed appellee as an engineer, and first put him to work setting the valves in the engine, which work occupied about 10 days; that thereafter O'Day put appellee to work at changing the location of some pumps, which work occupied several days; that afterwardO'Day had appellee working in the engine room until between the latter part of December, 1902, and January 1, 1903; that he worked a short time laying a pipe line on the factory premises, and was then put to work by O'Day in the machine shop, where he worked until injured on January 1, 1903; that he was required to work at emery wheels which were unguarded and were not provided with exhaust fans, which work was attended with greater hazards and dangers to appellee's eyes than the work of running an engine, which he had been employed to do; that appellee was wholly inexperienced in working at emery wheels prior to and up to the time he was put to work by appellant in its machine shop, and did not know the danger of doing work at the emery wheel, and was not warned by appellant or anyone of the danger from particles of iron or steel or emery set free from the wheel; that the wheels were not protected by any hood or device of any kind, nor with any exhaust fan or device to carry off dust and particles; that it was practicable to guard the wheels without interfering with their operation or usefulness, and that no device or protection of any kind was furnished to shield or protect the eyes of employés operating the emery wheels; that ordinary care and prudence required appellant to furnish employés working at the emery wheels eyeglasses set in closely woven network, so as to fit over the eyes close up to the face, or some other sufficient device or protection to shield the eyes while at work at the wheels; that it was practicable for appellant to provide for use of its employés some sufficient proper device or protection to shield or protect the eyes of employés required to work at the emery wheels, and that it was practicable to furnish eyeglasses made as above stated; that the wheels unguarded were dangerous to the eyes of employés operating them; that appellee did not realize the danger and was not warned by appellant; that O'Day was master mechanic, and had charge of the employés, who were subject to his orders and were bound to obey and conform to such orders; that on the 1st day of January, 1903, O'Day ordered appellee to take a piece of iron to the emery wheel and grind off the ends, which order appellee was bound to conform to and obey, and which he did obey, and was complying with such order and was using due care and diligence when injured; that small pieces of iron or steel or...