P. H. & F. M. Roots Company v. Meeker

• Decision Date: 16 February 1905
• Docket Number: 20,394
• Court: Indiana Supreme Court
• Parties: P. H. & F. M. Roots Company v. Meeker

73 N.E. 253

165 Ind. 132

P. H. & F. M. Roots Company v. Meeker

No. 20,394

Supreme Court of Indiana

February 16, 1905

Rehearing Denied June 9, 1905.

From Rush Circuit Court; Douglas Morris, Judge.

Action by Menzo J. Meeker against the P. H. & F. M. Roots Company. From a judgment on a verdict for $ 4,000, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

Miller Elam & Fesler, Conner & Conner and Smith, Cambern & Smith, for appellant.

Elliott & Barrows, Forkner & Forkner and Watson, Titsworth & Green, for appellee.

OPINION

Hadley, C. J.

This was an action by appellee, an employe, to recover damages for personal injuries alleged to have been received by the negligence of appellant, a manufacturing company, in failing to guard certain cogwheels, as required by section nine of the factory act of 1899 (Acts 1899, p. 231, § 7087i Burns 1901).

It was shown at the trial, by answers to interrogatories submitted to the jury, that appellee was about forty-six years of age possessed of the faculties of sight and hearing, and on July 14, 1902, was, and had been for nine months, in the employ of appellant, in its foundry. He had worked most of his time for twenty years in machine-shops and about machinery. Among other machines and devices in its plant, appellant had a crane for lifting and shifting heavy castings. In its construction the crane had a wooden upright mast pivoted at both ends, to which was attached a horizontal boom with its outer end slightly depressed. Upon this boom was a traveler, to which the weight to be lifted was attached, which, when released at the mast, would run out to the end of the boom of its own weight. The traveler was operated backwards and forwards on the boom by winding and unwinding a chain that ran around a drum located near the foot of the mast. The drum was turned by one person placing an iron crank eighteen inches long, weighing eight to ten pounds, upon the end of the shaft upon which the drum was hung. In the lifting apparatus were two heavy four-inch rimmed, unhoused cogwheels, near the base of the mast, that worked in each other, one thirty inches in diameter, the other much smaller, which were propelled by electric power. On July 14, 1902, appellee and Charles King, a fellow workman, were engaged in operating the crane. Appellee was entirely familiar with the construction of the crane, and how it was operated. He proceeded to the drum, took up the crank from the floor, placed it on the shaft, and revolved the drum so as to allow the traveler to run outward on the boom to the desired point. Having set the traveler, he had at that time no further business at the foot of the mast or about the gearing. When engaged about, or in turning, the drum in the ordinary way, it was not necessary for the appellee to have his hands nearer than three feet from the cogwheels, which wheels were in plain view while standing in the vicinity of where he used the crank. There were some pieces of boards, a few wooden wedges, and some scrap-iron lying on the floor near where appellee stood in turning the drum. The bare floor appeared in places. That condition of the floor was usual, and well known to appellee. There was nothing to prevent him from seeing what was on the floor. When appellee had completed adjusting the traveler, he took the crank off the drum shaft and held it in his left hand. At the time he was standing with the ball of his right foot resting on a short piece of iron shafting about one and one-eighth inches in diameter, and, placing his weight on his right leg, swung his left foot clear of the floor, in an attempt to push aside objects lying on the floor to make a clear spot to place the crank. He might have found a clear spot at that place on the floor to rest his feet upon if he had tried, and he could have safely laid the crank down without removing anything from the floor. Simultaneously with this effort to clear the floor, Charles King turned on the electric current and started the lifting apparatus, including the cogwheels. As appellee swung his left foot, the piece of shafting rolled under his right foot, unbalanced him, and, thereby starting to fall, he threw out his hands, and his right hand fell into the unguarded moving cogs and was injured. He knew that the cogs were unguarded. He did not know what was under the ball of his right foot, but if he had looked he could have seen that it was a short piece of iron shafting. The starting to fall was the cause of his getting his hand in the cogs, and, if he had looked where he was placing his feet, and given reasonable attention to his footing, he would not have been hurt. It was not necessary for appellee to remove anything from the floor before he could safely lay down the crank. No one representing the company ever had reason to anticipate that an employe would be hurt by such a combination of circumstances as produced appellee's injury. Nor was it known to anyone representing the company that a piece of iron shafting was lying on the floor near the base of the crane. Appellee might have removed with his right hand anything he undertook to push aside with his left foot, and if he had so employed his hand he would have escaped injury. He voluntarily assumed the position occupied by him at the time he fell, was not being hurried, and had plenty of time to remove from the floor with his hands anything that was in his way. The proximate cause of appellee's injury was losing his balance and starting to fall. The losing of his balance and his effort to save himself from falling, and the starting of the unguarded cogwheels at the same instant, cooperated, and caused the plaintiff's injury.

It is not averred or claimed that appellant was negligent in allowing pieces of wood and iron to accumulate about the drum where appellee was required to work. The only negligence complained of is the failure to guard the cogwheels. It is strenuously argued by appellant's counsel that these cogwheels, being only occasionally used, and so situated that no employe in performing his duties was required to approach them nearer than three feet, are not within the spirit of the statute relied upon. § 7087i Burns 1901, Acts 1899, p. 231, § 9. It is furthermore contended that, assuming that this class of cogs does come within the statute, the special findings clearly show that appellee was guilty of contributory negligence.

The view we have taken of the case makes it unnecessary...