Nat'l Fire Proofing Co. v. Roper

• Decision Date: 28 March 1906
• Docket Number: No. 5,499.,5,499.
• Citation: 77 N.E. 370,38 Ind.App. 600
• Parties: NATIONAL FIRE PROOFING CO. v. ROPER.
• Court: Indiana Appellate Court

38 Ind.App. 600

77 N.E. 370

NATIONAL FIRE PROOFING CO.

v.ROPER.

No. 5,499.^*

Appellate Court of Indiana, Division No. 1.

March 28, 1906.

Appeal from Circuit Court, Porter County; W. C. McMahan, Judge.

Action by Philip E. Roper, by next friend, against the National Fire Proofing Company. From a judgment for plaintiff, defendant appeals. Reversed.

John B. Peterson, for appellant. N. L. Agnew and Baker & Daniels, for appellee.

BLACK, P. J.

The appellee, a minor, by his next friend brought his action against the appellant, the complaint containing two paragraphs, a demurrer to each of which for want of sufficient facts was overruled.

In the first paragraph, after introductory matter, it was alleged, that the appellant was a corporation engaged in the manufacturing of tiling and material for building purposes, and had its factory and place of business in Lake county, Ind.; that June 13, 1903, the appellee was in the employment of the appellant as a laborer in its factory; that while there so employed, he was ordered and directed by the appellant to wheel dry dirt in a wheelbarrow from one end of a certain large second story room belonging to and being a part of appellant's factory to the opposite end thereof, and to unload the dirt at a place on that floor where there was a square opening in the floor; that immediately below and in this opening, but concealed from view, was certain machinery belonging to the appellant's factory and a part thereof, consisting of an arrangement of rollers and knives which revolved at a high rate of speed, the purpose and use of which was to mix sawdust, damp clay and dry dirt to the proper proportions and consistency for moulding into shape for tiling and building material; that sawdust, damp clay, and dry dirt were dumped on the floor over and around the square opening in the floor and thence were thrown into the opening in the proper proportion and quantities to be mixed and reduced to the proper consistency by the rollers, knives, and machinery immediately beneath the opening; that the opening and the machinery were not in any way guarded or protected by any railing or fenders or in any manner whatever, “as it was by law the duty of the defendant to do, but was open and entirely unguarded, and was therefore dangerous to those approaching it;” that the floor around the opening was damp and slippery; that as the appellee was unloading the dry dirt and clay from his wheelbarrow, in the course of his employment and in the line of his duty in the service and employment of the appellant as aforesaid, he necessarily approached near the opening in the floor, and thereupon he slipped upon the damp and slippery floor, and, by reason of the unguarded condition of the opening and the machinery therein, he fell into the opening and machinery with his left foot and leg, so that his said foot and leg were thrust into the opening and into the rapidly revolving machinery and rollers and knives and were immediately and entirely torn and cut off in such a manner that it thereby became and was necessary to amputate his left leg at a place about half way between the foot and the knee, etc. It was further alleged that the appellee would not have been so injured, but for the said unguarded and unlawful condition of said opening and machinery, etc.

The only difference between the first paragraph and the second was that in the latter it was alleged that the opening and machinery were by the appellant “carelessly and negligently” left open and entirely unguarded, and it was stated that by reason of the “carelessness and negligence of the defendant in so leaving said opening and machinery open and unguarded,” the appellant fell into, etc., and that appellee's foot and leg by reason of “said careless and negligent omission of defendant” were immediately and entirely cut off, etc., and that he would not have been so injured but for the “said careless and negligent omission of defendant,” etc. In section 9 of a statute of 1899, concerning labor, and providing means for protecting the liberty, safety, and health of laborers, etc. (Acts 1899, p. 234, c. 142), being section 7087i, Burns' Ann. St. 1901, there is a requirement that in manufacturing, etc., establishments, “all vats, pans, saws, planers, cogs, gearing, belting, shafting, set screws, and machinery of every description therein, shall be properly guarded”; and by section 25 the violation of any of the provisions of the act or omission to comply therewith is made a misdemeanor, and punishment therefor is prescribed. Counsel for appellant, claiming that the action is based upon a pretended right of recovery upon the common-law liability of a master to respond in damages to the injured servant for neglect of duty in failing to furnish a safe place in which...