Nickey v. Dougan

• Decision Date: 17 February 1905
• Docket Number: 4,669
• Citation: 73 N.E. 288,34 Ind.App. 601
• Parties: NICKEY ET AL. v. DOUGAN
• Court: Indiana Appellate Court

73 N.E. 288

34 Ind.App. 601

NICKEY ET AL. v. DOUGAN

No. 4,669

Court of Appeals of Indiana

February 17, 1905

From Dubois Circuit Court; Eugene A. Ely, Judge.

Action by Virgil Dougan against William E. Nickey and others. From a judgment for plaintiff, defendants appeal.

Reversed.

Lucius C. Embree, John H. Miller, Luther Benson, John F. Tieman and James W. Westfall, for appellants.

William E. Cox, W. S. Hunter, Leo H. Fisher, A. L. Gray and H. M Keane, for appellee.

OPINION

WILEY, J.

Action by appellee against appellants to recover damages resulting from their alleged negligence. The complaint is in four paragraphs, to which an answer in denial was filed. The sufficiency of the complaint was not tested by a demurrer below. The appellee petitioned the court for leave to prosecute the action as a poor person, which petition the court granted. The cause was tried by a jury, resulting in a verdict, based upon the first, second and third paragraphs of the complaint, in the sum of $ 2,500. With their verdict the jury also answered a series of interrogatories submitted to them. The appellants' motion for judgment on the answers to interrogatories was overruled, as was also the motion for a new trial.

By their first specification of the assignment of error, appellants aver "that the complaint does not state facts sufficient to constitute a cause of action;" by the second specification they predicate error in the overruling of their motion for judgment on their answers to interrogatories, and by the third specification they aver that the court erred in overruling their motion for a new trial.

In the first paragraph of complaint it is averred that appellee was a minor, being twenty years of age; that appellants were partners in the operation of a sawmill, which sawmill was equipped, among other things, with a ripsaw about twelve inches in diameter; that the operation of the saw required two men, one to feed it and the other to receive the planks after they had been pushed through the saw; that appellee was engaged in appellants' service in feeding said saw, and that appellants were negligent in that they "wholly failed, neglected and refused carefully and securely to incase or guard said ripsaw, so as to protect said employes while engaged in work near, around and about said saw, and by negligently failing to put a proper hood or covering over the top of said saw, and by failing to put a spike, or what is commonly called in sawmills a spreader,' immediately behind said saw, of sufficient height to prevent said saw from catching lumber, planks or boards, when the same would be thrown upon said saw, and hurling the same with great force and speed back, towards, at and against the person or employe engaged in feeding said saw; that on said 10th day of July, 1901, appellee was engaged at work for the said defendants in feeding said ripsaw; that it became and was a part of his duties, as an employe of defendants, at said time, to push and shove said plank, lumber, boards and timber upon, on and along a table about twelve feet long, upon which said ripsaw was then and there being run and operated, * * * for the purpose of ripping, cutting and sawing said lumber, planks and boards; that at said time said defendants had in their employ one Barney Cooper, for the purpose of aiding and assisting this plaintiff in his said work around and about said saw; that said Barney Cooper took hold of and caught a plank or board, and attempted to shove the same back to this said plaintiff for the purpose of having the same resawed; that, in doing so, said plank, on account of the failure and neglect of said defendants securely to guard and protect said saw with a hood or covering therefor, or with a spike or spreader of sufficient height to prevent said saw from catching said plank--plaintiff says that said saw, on account of the failure of the defendants securely to guard and protect the same, as aforesaid, caught said plank and hurled it at and against him with great force and speed." It is further averred that, by reason of said negligence, appellee, without any fault or negligence on his part, was severely and permanently injured.

The verdict shows that it rests upon the first, second and third paragraphs of complaint. This eliminates from the record, so far as the appeal is concerned, the fourth paragraph; and, in passing upon the sufficiency of the complaint, as raised by the assignment of errors, if we find that one paragraph is good, even though the second and third are bad, the assignment is unavailing. We will therefore consider the sufficiency of the first paragraph, and, if we find it good, our inquiry, in this regard, need not be pursued further.

By the assignment of errors the complaint is attacked as an entirety. It follows that if any one of the three paragraphs states facts sufficient to constitute a cause of action the assignment will not avail. Thatcher v. Turney (1893), 7 Ind.App. 667, 34 N.E. 1013, and cases there cited.

There is a sharp controversy between counsel as to whether the complaint proceeds upon the theory of a common-law liability, or upon the theory that appellee's injuries resulted from a failure of appellants to perform a duty imposed upon them by statute, requiring them properly to guard the saw with which appellee was working. If, as counsel for appellants insist, each paragraph proceeds upon the theory of a common law liability, then neither of them is sufficient, because of a failure to aver that appellee did not know the dangerous condition of the saw while he was operating it. Taking the allegations of each paragraph as a whole, we have reached the conclusion that appellee bottoms his right to recover for the injuries he sustained upon the failure of appellants to perform the duty laid upon them by section nine of what is commonly known as the factory act of 1899 (Acts 1899, p. 231, § 7087i Burns 1901).

1. In the first paragraph it is averred that appellants "wholly failed, neglected and refused carefully and securely to incase or guard said ripsaw, so as to protect said employes while engaged in work near, around and about said saw, and by negligently failing to put a proper hood or covering over the top of said saw, and by failing to put a spike, or what is commonly called in sawmills a spreader,' immediately behind said saw, of sufficient height to prevent said saw from catching lumber," etc. The statute (§ 7087i, supra,) provides: "All vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery of every description therein shall be properly guarded." By the averments of the first paragraph of the complaint it is specifically charged that appellants wholly failed to discharge this statutory duty, and that, by reason of such failure, appellee was injured. True, the complaint makes no reference to this statute, but it is not necessary, for by its general averments it clearly appears that it counts upon the statute. This exact question was decided in the case of Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149, 58 L. R. A. 944, 64 N.E. 610. In Buehner Chair Co. v. Feulner (1902), 28 Ind.App. 479, 63 N.E. 239, a complaint substantially like this was held good.

2. In such case it is not necessary for a complaint to state that the plaintiff had no knowledge of the unguarded condition of the saw, and the dangers resulting therefrom. Statutes of the character of the factory act of 1899 impose specific obligations, and a failure to comply with such obligations is an unlawful act of omission--a plain breach of a particular duty owing to the servant--and generally constitutes negligence per se." Monteith v. Kokomo, etc., Co., supra, and authorities there cited. Under the provision of the statute quoted, appellant was not required to aver in his complaint that he had no knowledge of the fact that the saw was unguarded, or that he did not see and comprehend such danger as arose from its condition. Baltimore, etc., R. Co. v. Cavanaugh (1905), 35 Ind. App.--; Monteith v. Kokomo, etc., Co., supra; Buehner Chair Co. v. Feulner, supra; Blanchard-Hamilton Furniture Co. v. Colvin (1904), 32 Ind.App. 398, 69 N.E. 1032. Under the authorities cited, the first paragraph of the complaint is clearly sufficient. This makes it unnecessary for us to consider the remaining paragraphs, for, having reached the conclusion that the first is good, the assignment, which assaults the complaint as an entirety, is unavailing.

This brings us to the consideration of the questions presented in argument, which arose under appellants' motion for a new trial. Counsel for appellants have confined their argument to three propositions: (1) That the verdict was contrary to law and not sustained by sufficient evidence; (2) the error of the court in refusing to discharge the jury on account of misconduct of one of appellee's counsel in his opening statement to the jury; (3) that the trial court erred in giving certain instructions. All other questions raised by the motion for a new trial are expressly waived. Under the specification of the assignment that the court erred in overruling appellants' motion for a new trial, we will first consider that part of the motion which attacks certain instructions given by the court upon its own motion.

3. In instruction number one, the trial judge undertook to define the issues tendered by the complaint, and it is urged by counsel that the instruction was erroneous, in that it did not discriminate between the facts pleaded in the several paragraphs. It must be kept in mind that the complaint was in four paragraphs, and that all of them differed in material averments. It should also be remembered that the jury based its verdict upon the first, second and third...