National Drill Company v. Myers

• Decision Date: 08 October 1907
• Docket Number: 5,884
• Citation: 81 N.E. 1103,40 Ind.App. 322
• Parties: NATIONAL DRILL COMPANY v. MYERS
• Court: Indiana Appellate Court

81 N.E. 1103

40 Ind.App. 322

NATIONAL DRILL COMPANY v. MYERS

No. 5,884

Court of Appeals of Indiana

October 8, 1907

From Wayne Circuit Court; 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 John L. Rupe, for appellant.

William H. Kelley and Bernard Korbly, for appellee.

OPINION

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 § 7087i Burns 1901, Acts 1899, p. 231 § 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 five, rule twenty-two, of the Supreme Court and this Court. 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. We think 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 (a) to guard a certain emery-wheel, and (b) to provide a sufficient exhaust-fan to carry off the dust occasioned by the use of the wheel, both omissions being in violation of the alleged provisions of section nine of the factory act (§ 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 that 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." Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 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, Indiana, and at the time appellee received his injury he was employed by appellant to grind and polish certain iron and steel parts of shovels and other tools by applying the same to an...