Nat'l Motor Vehicle Co. v. Pake
| Decision Date | 05 October 1915 |
| Docket Number | No. 8597.,8597. |
| Parties | NATIONAL MOTOR VEHICLE CO. v. PAKE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Joseph Collier, Judge.
Action by Andrew G. Pake against the National Motor Vehicle Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions for new trial.
Jos. E. Bell, of Indianapolis, and Geo. Shirts, of Noblesville, for appellant. Muter M. Bachelder and Harold K. Bachelder, both of Indianapolis, for appellee.
Appellee recovered a judgment in the sum of $1,500 against appellant on account of an injury to his left eye, which occurred while he was operating an emery wheel in appellant's factory.
The errors relied upon for reversal are: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) error in overruling appellant's motion for judgment on answers to interrogatories notwithstanding the general verdict; (3) error in overruling appellant's motion for a new trial.
The substance of the complaint, the theory and sufficiency of which becomes material in an examination of each of the errors presented, is as follows: On November 27, 1910, appellant was a corporation operating a large factory, in which it manufactured motors, tools, and implements, and in this connection it operated an emery wheel for the purpose of grinding upon iron. The wheel revolved upon a spindle which passed through a square hole in the center thereof and was propelled by electric power. Appellee's duties were to mind wrenches made of iron upon the emery wheel, and he had no other duties. It was appellant's duty to keep the emery wheel in condition for use for appellee, which it failed to do, in that the spindle became worn where it passed through the wheel, giving the wheel a zizzag motion, rendering it dangerous to operate; that when it became worn appellee notified appellant of the danger and requested appellant to replace the old spindle by a new one. At the time of such notice and request appellant informed appellee that it was not then prepared to replace the old spindle by a new one, but would do so as soon as the spindle could be obtained and to continue using the same. Pursuant to appellant's orders to continue using the wheel, appellee continued to do so and in a careful and prudent manner, and while operating the same it swerved from its true position, and jerked a monkey-wrench which appellee was grinding from appellee's hands pulling it underneath the wheel and then upward and against his left eye. Appellee was wearing glass goggles, it being necessary to do so in the operation of the wheel, and the wrench, before striking appellee's eye, came in contact with the goggles, breaking the same, and forced a part of the broken glass into appellee's left eye, causing a painful injury from which the sight in the left eye was destroyed, producing a permanent injury, to his damage in the sum of $15,000.
[1] The first assignment of error, viz., that the complaint does not state facts sufficient to constitute a cause of action, is an initial attack upon the sufficiency of the complaint for want of facts. This cause having been commenced since an act concerning proceedings in civil causes went into force (Acts 1911, p. 415), requiring a memorandum to be filed with a demurrer pointing out wherein the complaint is insufficient for want of facts, the above assignment of error raises no question for review. Stiles v. Hasler, 56 Ind. App. 88, 104 N. E. 878;Robinson v. State, 177 Ind. 263, 97 N. E. 929.
[2] Appellant insists that the answers to interrogatories show that the verdict proceeds upon a different theory than that set forth in the complaint; and it was error to refuse to render judgment on the same. The answers to the interrogatories disclose that the spindle upon which the emery wheel was connected revolved from 1,600 to 1,800 times per minute, and the speed of the wheel pulled the wrench from appellee's hands in a downward direction, which was an ordinary occurrence; that the revolving motion jerked the same from appellee's hands and carried it under and over the wheel so as to strike him in the face. It was not the force caused by the revolving motion that caused the injury. Appellee had but two conversations with the foreman in reference to the machine-one some time before the injury; and one a few minutes before. In the first conversation appellee informed the foreman that the spindle was too loose; that it rattled and caused too much lost motion. In the second conversation appellee told the foreman that the machine was not in shape to work on, and each time the foreman told appellee to proceed with the work; that it would not hurt him. Appellee never requested appellant to put in a new spindle, but he did request that it be repaired. Appellant promised to repair the same. The machine had a more lateral or side motion than was necessary.
The allegations of the complaint disclose that the relation of master and servant existed between appellant and appellee at the time of the injury, and that the servant was familiar with the machine with which he was performing his labor. It is likewise alleged that there was a promise on the part of the master to put in a new spindle. The complaint proceeds upon the theory that the servant continued in the employ of the master after he had knowledge of the defect in the machine, on the promise of the master to put in a new spindle. The general verdict finds that all the material allegations of the complaint have been established, among which was a promise on the part of appellant to put in a new spindle and a failure so to do, while the answers to interrogatories disclose that the promise was to repair the spindle. There is a slight conflict in other particulars, but, as a whole, the conflict is not such as to be irreconcilable; hence the court did not err in overruling appellant's motion for judgment in its favor. Marion Light, etc., Co. v. Vermillion, 51 Ind. App. 677, 99 N. E. 55, 100 N. E. 100;Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235;Wright v. Chicago, etc., Co., 160 Ind. 583, 66 N. E. 454;Ohio, etc., R. R. Co. v. Trowbridge, 126 Ind. 391, 26 N. E. 64;Town of Poseyville v. Lewis, 126 Ind. 80, 25 N. E. 593;Rogers v. Leyden, 127 Ind. 50, 26 N. E. 210;Graham v. Payne, 122 Ind. 403, 24 N. E. 216;Indianapolis, etc., R. R. Co. v. Lewis, 119 Ind. 218, 21 N. E. 660;City of South Bend v. Turner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200;Antles v. Adams, 105 N. E. 931.
[3] This leaves for consideration the errors presented under the motion for a new trial. Complaint is made of the trial court in giving to the jury upon its own motion instructions numbered 11 and 15, and refusing to give instructions numbered 3 and 4, as tendered by appellant. Instruction No. 11 is as follows:
“It was the duty of appellant to provide plaintiff with reasonably safe machinery and appliances on which plaintiff was required to perform his work in discharge of the duties under the employment, and that duty on the part of the defendant did not end with simply providing reasonably safe machinery and appliances in the first instance, but the further duty of continuously exercising reasonable care to ascertain the condition of such machinery and appliances was imposed upon the defendant; and in that particular the defendant was chargeable with notice of the natural tendency of machinery and appliances to deteriorate, or wear, by reason of use or exposure, and in that respect the defendant was chargeable with notice of any defect therein which could have been ascertained by the exercise of reasonable...
To continue reading
Request your trial