Myers v. W.C. De Pauw Co.

• Decision Date: 18 September 1894
• Citation: Myers v. W.C. De Pauw Co., 138 Ind. 590, 38 N.E. 37 (Ind. 1894)
• Parties: MYERS v. W. C. DE PAUW CO.
• Court: Indiana Supreme Court

138 Ind. 590

38 N.E. 37

MYERS

v.W. C. DE PAUW CO.

Supreme Court of Indiana.

Sept. 18, 1894.

Appeal from circuit court, Floyd county; G. B. Cardwell, Judge.

Action by Andrew Myers against the W. C. De Pauw Company for personal injuries. Judgment for defendant, and plaintiff appeals. Affirmed.

L. A. Douglas and W. D. Marshall, for appellant. A. Dowling, for appellee.

HACKNEY, C. J.

The record in this case presents the question of the sufficiency of each of two paragraphs of complaint. The first alleged the appellant's employment for the appellee in carrying plate glass to the grinding tables in appellee's plate-glass factory; that, while so engaged, a glass broke, and one of the pieces, in falling, struck his wrist, and inflicted the injury complained of. The charge of negligence against the appellee was in failing to notify the appellant of the dangers of the employment, and in neglecting to supply him with leather gauntlets for the protection of his arms and wrists. It was alleged, as the basis for the conclusion of negligence in failing to supply gauntlets, that it was the custom of the appellee to furnish them to, and at the expense of, employés. The second paragraph alleged that the service was dangerous, and one of its hazards was in the liability of the glass to break from “causes within itself;” that the appellant was ignorant of such hazard, and inexperienced in such service; that the appellee knew of the hazard and of the appellant's ignorance and inexperience, and negligently failed to advise the appellant of the hazard and to instruct him in the service; that the glass carried by the appellant broke from “causes within itself,” and, in falling, cut his wrist.

Appellant's counsel concede that “it is the settled doctrine of the law that an employé, when of mature age and of sufficient understanding to apprehend the dangers of the service, must be presumed to take all the ordinary risks pertaining thereto, in entering upon his employment.” Of the proposition thus conceded there can be no doubt, and, if the appellant was not “of mature age and of sufficient understanding to apprehend the dangers of the service,” the fact was not disclosed by the complaint. He must therefore be presumed to have assumed all of the ordinary risks attending the service. Was the injury sustained the result of any of such risks? It is a matter of common observation that glass is a fragile substance, and that its broken edges are sharp and dangerous. It is necessarily one of the natural incidents of the handling of glass, in the processes of its manufacture, that it will be broken...