Republic Iron & Steel Co. v. Jones

• Decision Date: 08 December 1903
• Citation: 69 N.E. 191,32 Ind.App. 189
• Parties: REPUBLIC IRON & STEEL CO. v. JONES.
• Court: Indiana Appellate Court

32 Ind.App. 189

69 N.E. 191

REPUBLIC IRON & STEEL CO.

v.JONES.¹

Appellate Court of Indiana, Division No. 2.

Dec. 8, 1903.

Appeal from Circuit Court, Clay County; P. O. Colliver, Judge.

Action by Thomas W. Jones against the Republic Iron & Steel Company. From a judgment in favor of plaintiff, for damages in the sum of $1,999.95, defendant appeals. Reversed.

Miller, Elam & Fesler and Saml. D. Miller, for appellant. Coffey & McGregor, for appellee.

ROBY, J.

Action by appellee to recover damages from appellant on account of personal injuries received by him while in its service. He is alleged in the complaint to have been employed as a heater in appellant's rolling mill, part of his duty being to put iron in a furnace by means of an iron instrument about eight feet long, one end of which was flattened so that the iron would lie thereon, there being a ring or handhold on the other end. It is alleged that appellant failed to furnish appellee a safe place in which to work, in that one foot east of the mouth of the furnace and seven feet south thereof was an oak post six inches thick and twelve inches wide, a part of the building, and that by reason of appellant's negligence in locating said furnace and post there was not sufficient room to perform the work, and appellee's working place was rendered dangerous on account of the liability of the operator to strike his person against said post while handling said iron instrument. It is alleged that appellee discovered the unsafe condition of said place, and complained thereof to appellant's superintendent, who promised to make the place safe by taking out the post and putting in a hanger; that appellee continued to work in reliance upon said promise, but within two days thereafter he struck his knee against said post, receiving the injury complained of. The cause was submitted to a jury for trial, and a general verdict returned for $1,999.95, together with answers to interrogatories.

Appellant's motion for judgment on the interrogatories and their answers notwithstanding the general verdict was overruled, and judgment rendered on the general verdict. No other question raised need be decided than that arising upon this motion, which is based upon the claim that such interrogatories and answers establish contributory negligence. The answers to interrogatories show facts as follows: Appellee had been a heater for 12 or 13 years. He was an efficient man; had worked 5 years in the mill before he was injured, and at the furnace where he was hurt 2 or 3 days. He was charging iron into the furnace when injured, using a “peel,” an instrument 8 feet 1 inch long, of 2-inch iron, flattened at the end for 18 inches to a width of 3 3/4 inches. The furnace door was 2 1/2 feet from the ground. The fore plate of the furnace door was 5 1/2 inches wide. The package of iron he was putting into the furnace when injured was 2 feet long, 4 inches wide, and 4 1/2 inches thick. It was placed on the “peel” by a helper; one end of the “peel” resting on the fore plate of the furnace, the other being held by appellee. The furnace opened to the south. There was a post 11 inches square located about 8 feet from the furnace door, and 6 inches east of the east side thereof. Said post was open and apparent to appellee's observation. He knew its location. He was injured while working at the east door of the furnace. He was in constant danger of being injured by reason of such post while at his work. He knew of the danger. He failed to pay any heed to the post, his attention being upon his work. It was possible for him to have avoided coming in contact with the post. He was injured August 2, 1899. “Q. 39. Could the plaintiff, by the exercise of ordinary care, have avoided coming in contact with said post? A. Yes.” The utmost that can be said of the facts, as exhibited, excluding interrogatory 39, is that the question of contributory negligence is left in doubt. Appellee's knowledge of the danger, his experience and skill, the character of the work, the distance of the post from the furnace door, were facts...