Oölitic Stone Co. of Indiana v. Ridge

• Decision Date: 01 March 1907
• Docket Number: No. 5,870.,5,870.
• Citation: 80 N.E. 441
• Parties: OÖLITIC STONE CO. OF INDIANA v. RIDGE.
• Court: Indiana Appellate Court

80 N.E. 441

OÖLITIC STONE CO. OF INDIANA

v.RIDGE.

No. 5,870.¹

Appellate Court of Indiana, Division No. 2.

March 1, 1907.

Appeal from Circuit Court, Morgan County; Jos. W. Williams, Judge.

Action by Andrew J. Ridge against the Oölitic Stone Company of Indiana. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. W. Grubbs, Duncan & Batman, and Elmer E. Stevenson, for appellant. Geo. L. Reinhard, Jno. A. Riddle, Watson & McGinnis, and Gavin & Davis, for appellee.

COMSTOCK, J.

Action to recover damages for personal injuries received by appellee through the alleged negligence of appellant while appellee was working in a stone quarry of appellant.

The complaint was filed in the Monroe circuit court. The cause was tried on change of venue in the Morgan circuit court, resulting in a verdict and judgment for plaintiff, assessing his damages at $4,000.

The errors relied upon for a reversal are the action of the trial court in overruling appellant's demurrer to the amended complaint, in sustaining the demurrer of appellee to the third paragraph of appellant's answer, in overruling appellant's motion for judgment in its favor on the answers to interrogatories, notwithstanding the general verdict, and in overruling appellant's motion for a new trial.

The amended complaint is, in substance, as follows: That defendant is now, and was on the 19th day of March, 1901, a corporation, engaged in the business of operating a stone quarry in Monroe county, Ind.; that on said day the plaintiff, with other employés of the defendant, was engaged and employed by defendant company in and about the stone quarry as a “shoveler” or “mudder,” and that it was his sole duty as such to shovel mud and loose dirt and pick up stone and spalls and remove them from the quarry; that on the day above mentioned a large stone, about 30 feet long, 7 feet deep and 5 feet wide, extending north and south, had been quarried and cut loose by the defendant company from the main ledge or wall on the east side of said quarry, and the north end thereof, by means of certain channeling machines operated by defendant's employés, and turned over toward the west side, leaving a space of about five feet between said stone and the ledge or wall on the east side and north end from which it had been cut loose; that there remained under and behind said stone, after the same had been so turned over, certain slips, wedges, and tools with which it had been broken loose from the floor of the quarry, that the plaintiff, while so engaged in shoveling and removing mud, loose dirt, and spalls from said quarry shortly after said stone had been turned over as aforesaid, was ordered to quit said work of shoveling and removing dirt and spalls, etc., from the quarry, and directed to go around the south end and behind said stone and into the open space between it and the wall on the east side and north end of said quarry and remove said slips, wedges, and other tools from under and behind said stone; that said order was given to plaintiff by one Peter Deckard, who was at the time and place engaged in the service of the defendant company as a derrick and ledge boss in said quarry, and who then and there had full charge of said quarry and was employed and authorized by defendant company to direct and control the employés and workmen in said quarry, at his pleasure, including the plaintiff; that the plaintiff was then and there bound to conform to the order and directions of said Deckard to go down into said open space behind said stone and remove said slips, wedges, and tools, and that he then and there did conform to and obey said order; that, in obedience to said order of said Deckard, plaintiff left his work as a shoveler and mudder, and went down behind said stone in the open space left by it next to the east wall and north end of said quarry to pick up said slips, wedges, and tools and remove the same from under and behind said stone; that while so engaged, and while about to remove said slips, wedges, and tools in obedience to the command of said Deckard, and while exercising due and proper care and diligence, and without any fault or negligence on his part, a large quantity, consisting of several tons of clay, dirt, and mud, of original deposit and small stones which had been left unsupported by the removal of said large rock, fell from the north end and east wall or bank of said quarry, and, without warning to the plaintiff, fell upon and against him with great weight and force, and crushed and bruised him about his back, shoulders, head, and breast and other places of his body, breaking three of his ribs and one of his legs, and otherwise greatly bruising, cutting, and wounding him, thereby permanently disabling and injuring said plaintiff for life; that said defendant company and said Deckard knew, and by the exercise of reasonable care could have known, that said wall and bank left by the excavation of said large stone was left unsupported and was unsafe and dangerous, and liable to cave in and fall upon the plaintiff at the time he was engaged in said work of picking up said slips, wedges, and tools, and that plaintiff alleges said fact to be true; that said defendant and said Deckard carelessly and negligently failed to make any inspection of said east wall and north end of said quarry either before or after said stone had been taken out from said place and turned over toward the west, in order to inform themselves whether the same was in danger of falling or not, but left the same in the dangerous condition in which it was, without any props or supports whatever, so that the bank of dirt, mud, and stone so left by the removal of said large rock was in great and immediate danger of caving in and falling, and did cave in and fall as aforesaid; that the plaintiff was unacquainted with the condition of said bank or wall of the said stone quarry after the stone had been excavated from the same, and did not see, and could not, by the exercise of reasonable care, have seen and observed, the peril and danger in which he was at the time he was picking up said slips, wedges, and tools in the open space under and behind said stones; that said bank and wall on the north end and east side appeared to him to be of solid rock, mud, and dirt of such a character as to give no sign or indication that it was in danger of falling, without a more minute inspection of the same; that the plaintiff relied upon the defendant and said Deckard, and believed that they had discharged their duty of making a careful inspection of said bank and wall and seeing that the same was safe and free from danger of caving in or falling on the plaintiff; that it...