Reliance Mfg. Co. v. Langley

• Decision Date: 15 October 1907
• Docket Number: No. 5,871.,5,871.
• Citation: 82 N.E. 114,41 Ind.App. 175
• Parties: RELIANCE MFG. CO. v. LANGLEY.
• Court: Indiana Appellate Court

41 Ind.App. 175

82 N.E. 114

RELIANCE MFG. CO.

v.LANGLEY.

No. 5,871.¹

Appellate Court of Indiana.

Oct. 15, 1907.

Appeal from Superior Court, Porter County; Harry B. Tuthill, Judge.

Action by Isaac M. Langley against the Reliance Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed, with instructions.Elmer E. Stevenson, for appellant. Crumpacker & Moran, and E. J. Bower, for appellee.

HADLEY, J.

The appellee brought this action to recover damages for personal injuries alleged to have been sustained by him by the breaking of a rope cable of a freight hoist or elevator, and the falling of the car in the factory of the appellant where appellee was employed. The amended complaint upon which the case was tried is in two paragraphs. The negligence charged against appellant in each of said paragraphs was in using a rope that was old, worn out, frayed, and rotten to sustain and move the car, and in failing to provide safety devices to prevent the falling of the car in the event of the breaking of the rope or cable. The first paragraph of the complaint also averred that appellee had no knowledge of this defective and dangerous condition. The second paragraph contained no such averments. A separate demurrer was filed to each paragraph of the complaint, which demurrers were overruled. Answer by general denial, trial, and verdict and judgment for appellee.

It is earnestly contended by appellant that the court erred in overruling its demurrer to each paragraph of the complaint. In the consideration of this question, we are met at the threshold with the technical objection of appellee that no question is presented on this ruling of the lower court by the record. In view of the fact that in our opinion this cause should be reversed on other grounds, we deem it unnecessary to pass on this technical objection, and, to avoid the question arising in a subsequent trial, we deem it to the best interests of all parties to express our opinion upon the paragraphs of the complaint. Without going into the averments of the first paragraph, it seems clear to us that it avers sufficient facts to show a common-law liability for negligence on the part of appellant and a cause of action in appellee, and the demurrer was properly overruled. The second paragraph is insufficient to show a common-law action, in that it does not aver that appellee had no knowledge of the defective conditions as set out in the complaint, and which are averred as negligent acts on the part of appellant. It is not sufficient to show a statutory liability, for the reason that it does not show the violation of any statutory duty on the part of appellant. One who relies upon the statute must bring himself fully and clearly within all its provisions. La Porte Carriage Co. v. Sullender, 165 Ind. 290, 75 N. E. 277.

The question, however, upon which this case must be determined is upon the twenty-fifth instruction given to the jury by the court upon its own motion, over the objection of appellant. The instruction was as follows: “Under section 7087e of the Revised Statutes of 1901 of Indiana, it is made the duty of an employer of labor, who provides apparatus used for an elevator in his establishment, to keep the same in safe condition with proper safety devices whereby the cabs or cars will be securely held in the event of accident to the cable, rope, or hoisting machinery thereof, and the statute makes it the duty of the state factory inspector to inspect and require that this be done. This statute makes a master guilty of negligence in failing to comply by providing such safety appliances, and, in the absence of contributory negligence, the servant may recover for injuries which he suffers, where the failure of the master to provide said appliances is the proximate cause of the injury, and the servant does not assume the risk of injury merely by knowledge upon his part of such violation of the statute and failure to comply therewith upon the part of the master. However, he must be free from contributory negligence.” It is insisted that this instruction is erroneous, since neither the section of the statute referred to therein nor any other statute of this state imposes upon the owner, lessee, or agent of a factory the duty of maintaining safety devices upon all elevators arbitrarily without regard to whether he has been so required or ordered by the factory inspector. The section referred to is as follows: “It shall be the duty of the owner or lessee of any manufacturing or mercantile establishment, laundry, renovating works, bakery or printing office, where there is an elevator, hoisting shaft or well hole, to cause the same to be properly and substantially inclosed or secured, if in the opinion of the chief inspector it is necessary, to protect the lives or limbs of those employed in such establishment. It shall also be the duty of the owner, agent or lessee of each of such establishments to provide, or cause to be provided, if in the opinion of the chief inspector, the safety of persons in or about the premises should require it, such proper trap or automatic doors so fastened in or at all elevator ways as to form a substantial surface when closed, and so constructed as to open and close by the action of the elevator in its passage, either ascendingor descending, but the requirements of this section shall not apply to passenger elevators that are inclosed on all sides. The chief inspector shall inspect the cable, gearing or other apparatus of elevators in the establishments above enumerated and require that the same be kept in safe condition with proper safety devices whereby the cabs or cars will be securely held in...