Nordyke & Marmon Co. v. Whitehead
| Decision Date | 24 November 1914 |
| Docket Number | No. 22523.,22523. |
| Citation | 106 N.E. 867,183 Ind. 7 |
| Court | Indiana Supreme Court |
| Parties | NORDYKE & MARMON CO. v. WHITEHEAD. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Johnson County; Wm. E. Dupree, Judge.
Action by Elizabeth Whitehead, administratrix, against the Nordyke & Marmon Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under Burns' Ann. St. 1914, § 1405. Affirmed.Elmer E. Stevenson, of Indianapolis, E. A. McAlpin, of Greenwood, and Thomas D. Stevenson, of Indianapolis, for appellant. Charles B. Clarke, Walter C. Clarke, and Robert N. Miller, all of Indianapolis, and Henry C. Barnett, of Franklin, for appellee.
Suit by appellee to recover damages for the death of her decedent, alleged to have been caused by negligence on the part of appellant. A trial by jury resulted in a verdict for appellee in the sum of $3,600, and from a judgment on such verdict this appeal is prosecuted.
[1] It is first urged that the trial court erred in overruling appellant's demurrer to the second paragraph of complaint. This paragraph, omitting the formal parts, alleges the ownership and operation by appellant of a manufacturing plant in the city of Indianapolis; that in said plant it uses coal for the generation of steam for power and heating purposes; that such coal comes to appellant in large coal cars, and is delivered to it on what is known as the Belt Railroad, in said city, from which railroad appellant transfers said loaded cars of coal into its yards over a private railroad track owned and controlled by it; that for the purpose of moving said cars appellant has installed, and owns and operates, an appliance or piece of machinery consisting of a large cylinder or spool operated by steam power, and to which is attached a long heavy rope with a chain at the end; that said chain is fastened to the loaded car at a point some 12 inches from the ground, and by applying power to the spool or cylinder the rope is wound up and the car pulled over said track to the desired point; “that this track lies along one side of the numerous buildings in defendant's plant, and within two or three feet thereof, and near doors or openings through which the many employés of defendant are constantly passing; that said rope is placed on or within an inch or two of the ground, and is held there by pulleys or spools, so that the employés could pass in and out of said building through said doors and step over said rope without risk or danger; that when said appliance is being used defendant's many employés, including plaintiff's decedent, were compelled to, and did, pass over the said rope under direct orders from the defendant so to do.”
The complaint further charges that on the 7th day of January, 1909, while appellant was moving a loaded car of coal in the manner above described, said car ran off the track; that appellant then applied great power to said rope and chain, and endeavored to pull said car back onto said track; that the chain thus used by appellant on said date was weak, and not of sufficient strength thus to pull said car of coal; that the links of said chain were made of brittle material, and were of such size and shape as not to be sufficient for such use; that said chain was liable to break and give way and be jerked through the air near said building and the entrances thereto; “that plaintiff's decedent, a man 62 years of age, was employed by defendant in the building adjoining said track; that he was ordered and directed by defendant, its agent and foreman, who knew what was then being so carelessly and negligently done with said car and chain, as above set forth, to remove some rubbish from said building to a dump on the outside thereof; that plaintiff's decedent, who was then acting as ordered and directed, had gone with said lot of rubbish to said dump; that as he was returning therefrom the chain, which was so carelessly and negligently fastened to said car and to which said power was so carelessly and negligently applied, broke and gave way by reason of its being too weak to perform the said services required of it as aforesaid; that said chain so attached to said rope broke and gave way, and the said chain was jerked, hurled, and pulled through the air for a distance of 50 or 60 feet,” striking appellee's decedent, and producing the injuries which resulted in his death. The complaint also charges knowledge on the part of appellant as to the weakness and defective condition in said chain and the danger therefrom, and avers that appellee's decedent had no such knowledge.
Counsel for appellant contend that every averment in this pleading relative to the strain on said chain is simply and solely a conclusion on the part of the pleader, not based on any facts which are averred directly; also that said paragraph does not show by any direct allegation the fact that the work of the decedent in any way required him to be where it is alleged that he was when struck by the rope or chain. The pleading before us is not a model one, but we cannot agree that it is open to the objections urged by appellant's counsel. It fairly informed appellant of the negligence charged against it, and is sufficient to show that at the time he received his injuries appellee's decedent was performing one of the duties of his employment in obedience to appellant's order, and that in so doing he was using a passageway provided and maintained by appellant for that purpose. This is the necessary and only reasonable inference to be drawn from a fair construction of the paragraph as a whole, and is sufficient to sustain the pleading as against a demurrer for want of facts. Domestic Block Coal Co. v. De Armey, 179 Ind. 592,...
To continue reading
Request your trial