New Castle Bridge Company v. Doty

• Decision Date: 13 December 1906
• Docket Number: 20,759
• Citation: 79 N.E. 485,168 Ind. 259
• Parties: New Castle Bridge Company v. Doty
• Court: Indiana Supreme Court

79 N.E. 485

168 Ind. 259

New Castle Bridge Company v. Doty

No. 20,759

Supreme Court of Indiana

December 13, 1906

Rehearing Denied March 15. 1907.

From Morgan Circuit Court; Joseph W. Williams, Judge, pro tem.

Action by Arthur W. Doty against the New Castle Bridge Company. From a judgment on a verdict for plaintiff for $ 5,000, defendant appeals. Transferred from Appellate Court (see 37 Ind.App 84) under cl. 1, § 1337j Burns 1901, Acts 1901, p. 565 § 10.

Affirmed.

Elmer E. Stevenson and Oscar Matthews, for appellant.

Charles F. Remy, John W. Donaker and Renner & McNutt, for appellee.

OPINION

Hadley, J.

Appellee recovered a judgment for personal injuries received through the alleged negligence of appellant. Appellee was employed in appellant's yards, and on the day of the injury was ordered to go into the shop and assist in shearing a large steel plate, and while so engaged was hurt by the falling of a pile of angle irons upon his leg. The negligence charged is the permitting of the shears to become and remain dull, the improper piling of the angle irons, and in permitting the angle irons, so improperly piled, to be and remain concealed in the shops at the place where the plaintiff was ordered to assist in the work of shearing. A demurrer to each of the two paragraphs of complaint was overruled, as was also appellant's motion for judgment on the answers to interrogatories, and for a new trial.

Appellant, under its points and authorities, has stated many general propositions of law, but nowhere in its brief has it suggested any specific objection to the complaint. We have, therefore, treated the assignment on the rulings upon the demurrers to the complaint as being waived.

It is alleged in the complaint that the plaintiff was employed to work in the yard, and was ordered by the defendant to go into the shop, where he was not acquainted, and assist in shearing a steel plate; that the shears pointed to the north; that the steel plate to be sheared was twenty feet long, four feet, four inches wide, and five-sixteenths of an inch thick; that the plate was suspended by chains to a hoist and rested immediately to the east of the shears; that it required from eight to ten men to do the shearing, which was accomplished by half the men pulling and half pushing the plate steadily and smoothly through the shears, from the north to the south; that the cuts were six inches wide and when a cut was finished it dropped to the west of the shears and the plate returned to the north and was again pulled and pushed through the shears as before.

The answers to the interrogatories show that the appellee is a man of average intelligence, good eyesight, and experienced in working with and about iron. He had been for three weeks employed by appellant as a general workman in the yard, and on one previous occasion had been sent into the shop to assist in shearing steel plates, but helping to shear steel plates was not within the scope of his employment. On the occasion of his injury, the appellee, with others from the yard, was sent into the shop to help shear. When they arrived the plate was in position for shearing. The appellee took his place at the southeast corner of the plate. At the time there were two single tiers of angle irons, twelve to sixteen inches high, on the floor of the shop, and east of the shears, and which the appellee could not see by looking down. The angle irons were improperly piled and the appellant knew it, and they were piled by order of the shop-foreman. It was the custom of the shop to pile irons east of the shears to await removal to the bolting rack. The appellee had selected his place at the plate, had helped to cut one strip, and if he had made a close inspection might have avoided injury. The shop in the vicinity of the shears was amply lighted. The angle irons extended eastward from the shears to a point east of the plate being sheared. Appellee's injury, by the falling of the angle irons upon his leg, could have been anticipated by the appellant.

From the averments of the complaint and the facts disclosed by the answers to interrogatories, appellant argues that the appellee's injuries from the falling irons were an assumed risk of employment. Its contention being that since it was common to pile the irons by the shears to remain only temporarily, and until they could be removed by other employes to the bolting rack, they formed only a transient, shifting condition usual to all similar establishments, and therefore a danger that all employes must be held to have assumed. If the appellee had been employed to work in the shop and was familiar with the conduct of the business therein, and such a piling of iron was customary and necessary to a reasonable and economical dispatch of business, then we should have a very different question. But the appellee was employed to do general work in the yard, the evidence shows, to pile iron, load and unload cars, and such other work as was required to be done about the yard.

An assumed risk rests upon contract. When the appellee undertook with appellant to do general work in the yard, he impliedly agreed, as part of his contract of employment, to assume the risk, that is, take his chance of all known or apparent perils that are usually incident to the place where, and the business in which, he is to engage. Brazil Block Coal Co. v. Gibson (1903), 160 Ind. 319, 98 Am. Rep. 281, 66 N.E. 882; Wabash R. Co. v. Ray (1899), 152 Ind. 392, 51 N.E. 920.

But the appellee's assumption of risk was no broader than his contract. He could not have looked to his employer for protection against an unsafe place, or unsuitable appliance, beyond the general scope of his employment, had he voluntarily gone outside; and when ordered, as in this case, by his employer, to go into the shop and do unfamiliar work, in an unfamiliar place, with a different set of fellow workmen, and receiving no notice to the contrary, he had the right to assume that the new working place was safe and in good condition, and, as against a danger that was not open, or of which he had no knowledge, actual or constructive, he assumed no risk. In such case, if injured by reason of the working place's being negligently obstructed by the appellant, the appellee, being himself in the exercise of due care, was entitled to recover. Brazil Block Coal Co. v. Hoodlet (1891), 129 Ind. 327, 336, 27 N.E. 741; Republic Iron & Steel Co. v. Ohler (1903), 161 Ind. 393, 68 N.E. 901; Cincinnati, etc., R. Co. v. Madden (1893), 134 Ind. 462, 34 N.E. 227; Louisville, etc., R. Co. v. Hanning (1892), 131 Ind. 528, 31 Am. St. 443, 31 N.E. 187.

Neither does the servant in his contract assume the increased hazard of his master's negligence in furnishing an unsuitable and an unsafe place to work.

Applying these principles to the facts in this case, appellant's contention cannot be sustained. It is shown that the appellee had assisted in shearing in the shop but once before. The angle irons had been piled immediately east of the shears, in an improper manner, by the direction of the shop foreman, and with the knowledge of the appellant, and in such a way that the appellee's injury from their falling on him could have been anticipated by the appellant. The evidence shows, without dispute, that the improper piling consisted of placing one angle iron on top of another in a single unsupported tier, while the proper, safe, and customary way of piling was to place them in double interlocking tiers. Besides, the answers show that when the appellee, by the order of the appellant, arrived at the shears, the steel plate was mounted ready to shear, and he did not know that the angle irons had been piled near the shears. He could not see them when he took his place at the plate by looking down, and, according to the testimony of at least two witnesses, he could not see the irons because the plate they were about to shear was over them, though the irons did extend east of the plate. Neither does it appear that the appellee had, nor, by the exercise of reasonable diligence, might have had, knowledge of their presence until they fell and injured him. From these facts the jury was warranted in finding not only that the appellee did not assume the risk, but also that the appellant was guilty of the negligence complained of.

Appellant's counsel also insist that if the appellant was guilty of negligence in permitting the angle irons to be and remain piled by the shears, such negligence, as shown by the evidence and findings, was not the proximate cause of the appellee's injuries. It is contended that it was the negligence of the appellee and his fellow workmen in allowing the plate that was being sheared to tip and strike the irons that constituted the proximate cause of the appellee's accident. This contention cannot be allowed. There is no finding nor evidence to show that the tipping was not a usual and necessary thing to facilitate the cutting by the shears. Indeed, there was testimony, by at least two witnesses, that it was necessary in passing the plate through the shears to move it up and down to dislodge it from the shears; and, under the findings and evidence, we can by no means say, as a matter of law, and against the general verdict, that the movement of the plate's edge upward and downward was negligence, or even unnecessary. Under the facts as they appear, it was the piling of the angle irons in an improper manner and in a place where they would be unseen and dangerous to the workmen engaged in shearing, that constituted the first, the originating, and immediate cause of the appellee's injuries. P. H. & F. M. Roots Co. v. Meeker (1905), 165 Ind. 132, 73 N.E. 253.

Complaint is made of the second instruction because it informed the...