Paul Manufacturing Co. v. Racine
| Decision Date | 25 May 1909 |
| Docket Number | 6,428 |
| Parties | PAUL MANUFACTURING COMPANY v. RACINE, ADMINISTRATRIX |
| Court | Indiana Appellate Court |
From Superior Court of Allen County; O. N. Heaton, Judge.
Action by Alice M. Racine, as administratrix of the estate of Claude H. Racine, deceased, against the Paul Manufacturing Company. From a judgment on a verdict for plaintiff for $ 600 defendant appeals.
Reversed.
Elmer E. Stevenson and Zollars & Zollars, for appellant.
Clyde M. Gandy and Harry H. Hilgemann, for appellee.
This was an action for damages for the alleged negligent killing of appellee's decedent, based upon appellant's neglect to provide an efficient guard for a certain ripsaw in use in its manufacturing establishment, which saw appellee's decedent was required to operate.
This cause was tried upon the second paragraph of appellee's complaint. A demurrer for want of facts was overruled to that paragraph, and this ruling is assigned as error.
In that paragraph, among other facts, it appears that appellant, on September 23, 1903, was operating a certain wood-working manufacturing plant; that appellee's decedent was in its employ in said factory, engaged in operating "a certain machine known as a ripsaw," used in sawing boards; that it was appellant's duty properly to guard said saw; that it negligently, carelessly and unlawfully failed to perform this, its duty; that the safeguards about the saw had been removed, as defendant well knew, or should have known, by reason of the great length of time said saw had been allowed to remain unguarded; that knowing of the defective condition and of the insufficient guards about said saw, defendant negligently and unlawfully permitted plaintiff's intestate to work at and about the same, and "that it was practicable and possible properly to guard said saw." It is then alleged that on the day aforesaid, while plaintiff's decedent, in a careful and prudent manner, was operating said saw, and without any fault or negligence on his part, but because of the lack of the aforesaid proper safeguards, and because the safeguards were in an ineffective condition, a board caught in the saw and was hurled with great force against said decedent, causing him great bodily injuries, from which injuries he died on the following day.
The question presented by counsel is whether this complaint shows a sufficient cause of action under the provisions of section nine of the factory act (Acts 1899, p. 231, § 8029 Burns 1908), which provides that all vats, pans, saws, etc., shall be properly guarded. Appellant, in support of its objections urged against the pleading, contends that, in a suit of this nature, the complaint must allege that it was practicable or possible properly to guard the machine without rendering it useless for the work for which it was intended, and that the allegation in the complaint, "that it was practicable and possible properly to guard said saw," falls short of such requirement. The statute in question has been the subject of construction in a number of cases in the Supreme Court and in this Court. The variance, if it may be so called, between the cases being the different views taken as to the proper meaning of the general words in the statute, "and machinery of every description therein." The cases are harmonious that a failure to guard machinery specified in § 8029, supra, is negligence per se. Inland Steel Co. v. Yedinak (1909), 172 Ind. 423, 87 N.E. 229; Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 73 N.E. 899; Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149, 64 N.E. 610. In this case the offending part of the machine was a saw, specifically mentioned in § 8029, supra, as a thing which shall be "properly" guarded. If to obey the statute and guard the saw would render it useless for the purposes intended, then certainly to guard the saw would not be practicable. While the approved form is to allege the fact to be as appellant contends, yet we are of the opinion that the allegation in question was sufficient to enable a person of common understanding to know what was intended (§ 343 Burns 1908, § 338 R. S. 1881), and to bring the case within the statute. The words adopted by the pleader are to be taken in their ordinary signification in the connection in which they are used, proper consideration being given to all parts of the pleading. Davis v. Mercer Lumber Co., supra; Whiteley, etc., Castings Co. v. Wishon (1908), 42 Ind.App. 288, 85 N.E. 832.
Appellant contends, also, that the theory of the pleading is that the guard became ineffective, and that the machine therefore was not properly guarded, and it is contended that if the employer has provided a suitable guard, and it becomes ineffective, he is not liable if a servant is injured, unless the employer knew of the defect, or that such defect had existed for such a length of time that the employer would be chargeable with notice, and that the law requires a servant to report a defect in a guard, as in cases of other appliances. Appellant further suggests that the complaint fails to show for how long a time before the accident this guard had been ineffective.
It was the duty of the employer not only to provide a proper guard, but also to maintain a proper guard. The statute requires affirmatively that all saws in a manufacturing establishment "shall be properly guarded." The complaint shows that the appellant knew that the guard about the saw had been removed; that it knew that the guard had become ineffective, or should have known these facts by reason of the great length of time the saw had been allowed to remain in an unguarded condition. It would hardly be said that appellant was complying with the statutory mandate properly to guard the saw, if it knew the saw had inefficient guards about it. We are not dealing with master and servant as their rights and duties existed at common law, but as fixed by a positive statute. Monteith v. Kokomo, etc., Co., supra. So it has been held that the doctrine of assumed risk has no application to cases of this class. United States Cement Co. v. Cooper (1909), 172 Ind. 599, 88 N.E. 69; Island Coal Co. v. Swaggerty (1903), 159 Ind. 664, 62 N.E. 1103; Davis Coal Co. v. Polland (1902), 158 Ind. 607, 62 N.E. 492; Diamond Block Coal Co. v. Cuthbertson (1906), 166 Ind. 290, 76 N.E. 1060. The fact that the employe continued his work with knowledge of the defectiveness of the guard would not necessarily render him chargeable with contributory negligence. That would be a question for the jury. Buehner Chair Co. v. Feulner (1905), 164 Ind. 368, 73 N.E. 816; Baltimore, etc., R. Co. v. Cavanaugh (1905), 35 Ind.App. 32, 71 N.E. 239; United States Cement Co. v. Cooper, supra.
As to the question of knowledge on the part of the appellant, the allegations on that subject in the complaint would have been sufficient at common law. See Wabash, etc., R. Co. v. Morgan (1892), 132 Ind. 430, 31 N.E. 661; Louisville, etc., R. Co. v. Utz (1892), 133 Ind. 265, 32 N.E. 881; Ohio, etc., R. Co. v. Pearcy (1891), 128 Ind. 197, 27 N.E. 479. The objections to the complaint are not sustained.
The appellant's motion for judgment in its favor upon the answers to the interrogatories was overruled. It is claimed that the answers show that there was no negligence on the part of the appellant, that the appellee was guilty of contributory negligence, and further that the injury to the appellee was due solely to the negligence of a fellow servant.
Space need not be taken to repeat the rules which obtain in this court governing a motion for judgment upon the special findings of the jury. The finding by the general verdict that appellant failed to guard the saw properly, as required by the statute, is not irreconcilable with any of the special findings. Evidence was admissible...
To continue reading
Request your trial