Nat'l Drill Co. v. Myers

• Decision Date: 08 October 1907
• Docket Number: No. 5,884.,5,884.
• Parties: NATIONAL DRILL CO. v. MYERS.
• Court: Indiana Appellate Court

40 Ind.App. 322

81 N.E. 1103

NATIONAL DRILL CO.

v.MYERS.

No. 5,884.

Appellate Court of Indiana, Division No. 1.

Oct. 8, 1907.

Appeal from Circuit Court, Wayne County; Henry C. Fox, Judge.

Action by Noah Myers against the National Drill Company. From a judgment for plaintiff, defendant appeals. Reversed.

Elmer E. Stevenson and Jno. L. Rupe, for appellant. W. H. Kelley and Bernard Korbly, for appellee.

MYERS, J.

Appellee in the court below prosecuted this action against appellant to recover damages for a personal injury, alleged to have been caused by appellant's failure to comply with the provisions of section 7087i, Burns' Ann. St. 1901 (Acts 1899, p. 234, c. 142, § 9). A demurrer to the complaint for want of facts was overruled. A complaint in one paragraph, answered by a general denial, formed the issue, which was submitted to a jury, resulting in a verdict followed by judgment in appellee's favor for $2,200. The ruling on the demurrer is the first error here relied on for a reversal of the judgment.

1. Considering the demurrer to the complaint, appellee insists that appellant has waived this specification of error by its failure to comply with clause 5, Rule 22, of the Supreme and this court (55 N. E. vi). We do not think this point well taken. Appellant's brief furnishes a copy of the complaint, except the formal parts, and states that the demurrer to the complaint for insufficient facts was overruled and exception taken, and refers the reader to the transcript-page 7 -for the ruling on the demurrer. In our opinion the brief is sufficiently explicit on this point to inform the court what questions are presented by the demurrer without an examination of the record. This being true, the rule is substantially complied with.

2. It will not be necessary to state the substance of the complaint, for it is clear from the allegations thereof that appellee rested his cause of action on appellant's failure (1) to guard a certain emery wheel; and (2) to provide a sufficient exhaust fan to carry off the dust occasioned from the use of the wheel -both omissions being in violation of the alleged provisions of what is known as the “factory act.” Section 7087i, supra. Appellant contends that the act above referred to does not require emery wheels to be guarded; that the Legislature had in mind the safety of persons employed in factories when it required that certain machinery and equipment be guarded, and the provision for exhaust fans has reference to the health of persons employed in such establishments. Section 7087i, supra, expressly provides that “all vats, pans, saws, planers, cogs, gearings, belting, shafting, set screws, and machinery of every description therein shall be properly guarded.” In this connection emery wheels are not specifically mentioned. If they are within the statute, it is because of the general phrase, “And machinery of every description therein.” Since this cause was tried the Supreme Court of this state has construed that phrase to include only “machinery or appliances belonging to or of the class or character designated as ‘vats, pans, saws,’ etc.” La Porte Carriage Co. v. Sullender, 165 Ind. 290, 303, 75 N. E. 277. Under this ruling, unless the emery wheel as used and described in the complaint can be said to be of the class or character of the machines and equipment the statute designates to be guarded, it would not be included in the general phrase.

It is shown by the complaint that appellant owned and operated a manufacturing plant in Cambridge City, Ind., and at the time appellee received his injury he was...