Republic Iron & Steel Co. v. Ohler

• Decision Date: 17 November 1903
• Docket Number: 20,023
• Citation: 68 N.E. 901,161 Ind. 393
• Court: Indiana Supreme Court
• Parties: Republic Iron & Steel Company v. Ohler

68 N.E. 901

161 Ind. 393

Republic Iron & Steel Company v. Ohler

No. 20,023

Supreme Court of Indiana

November 17, 1903

From Superior Court of Madison County; H. C. Ryan, Judge.

Action by William M. Ohler against the Republic Iron & Steel Company. From a judgment in favor of plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

W. H H. Miller, J. B. Elam, J. W. Fesler, S.D. Miller, J. W Lovett and Harry Rubens, for appellant.

W. A Kittinger and W. S. Diven, for appellee.

OPINION

Jordan, J.

Action by appellee to recover damages for personal injuries sustained by him while in the employ of appellant, which injuries are alleged to be due to the negligence of the latter. The answer was a general denial, and a trial before a jury resulted in a general verdict in favor of appellee, awarding him damages in the sum of $ 2,500. Answers to a series of interrogatories were also returned by the jury along with their general verdict.

Appellant company unsuccessfully moved for a new trial, and judgment was rendered against it upon the verdict. The points discussed by its counsel and relied upon for a reversal are all based upon the action of the court in denying the motion for a new trial.

The following, among others, are substantially the facts alleged and set out in the complaint: The Republic Iron & Steel Company is a corporation operating a manufacturing plant near the town of Frankton in Madison county, Indiana, and is engaged in making iron bars and rods by means of machinery propelled by steam. The factory is a large plant, and the company hires for services therein a large number of men. On and prior to the 20th day of December, 1899, plaintiff (appellee herein) was in the employ of said company, and was classed in and was at work in what was known as the "'floating gang,' engaged in doing first one kind of labor and then another." About 4 o'clock on the morning of said 20th day of December, 1899, after he had finished what is denominated as "his night turn," one Kelly who was "foreman of the defendant's said factory, and foreman over its men and employes of the department in which the plaintiff was then at work," ordered him to hold a piston-rod; and, while he was holding said rod, Kelly, as such foreman and agent, ordered two workmen to strike the end of said rod for the purpose of swelling the same in order to fasten a head thereon. Said piston-rod was made of steel, and while the plaintiff was holding it, in obedience to the order and direction of the foreman, the two men and workmen, by order of said foreman, struck the end thereof with large iron hammers; and while they were so striking the rod a piece of steel flew off from the said head or end and struck the plaintiff in the left eye, thereby destroying the sight thereof, rendering him totally blind in said eye. At the time this sliver of steel struck plaintiff's eye, his head was about two feet from the end of the piston-rod, and was at said distance from the rod by reason of the fact that the foreman had directed him to hold and place himself in that position. The plaintiff was not warned by the defendant or by said foreman of any danger that might result by reason of the end of said piston-rod being hammered and knocked off, or of any danger that might result therefrom. It appears that he had no knowledge of any danger which might attend the holding of said rod when pounded as it was under the circumstances. It is averred that the place where plaintiff was ordered to hold the rod was made dangerous and unsafe for workmen who were wholly unacquainted and inexperienced to work in such a position, and that it was negligence on the part of the defendant to have him hold the rod while said workmen hammered and pounded the same for the purpose of driving or fastening a head thereon. The defendant was aware of and knew of the danger or peril which, under the circumstances, attended the holding of the rod when a head was being hammered thereon; and the defendant also knew that the only proper and safe way to work upon said rod, in order to hammer a head thereon, was to place it in an upright position, without the aid of any person holding it, by fastening it in such a manner as to hold it in position so as to drive thereon the piston-head, and the defendant knew that no one should hold the said rod with his hands when said work was being performed. The plaintiff, it is averred, did not learn these facts until after he was injured. At the time the plaintiff sustained the injury alleged, he had been working continuously, at the instance and request of the defendant in the said factory, for a period of forty-eight hours, without any sleep, and when he was ordered by said foreman to hold the rod, by reason of his continuous work without sleep, he did not realize nor appreciate the danger to which he was being subjected, and had no knowledge that it was unsafe or dangerous to hold the rod in the manner as ordered by the foreman. It is charged generally that the injury was caused by the negligence and carelessness of the defendant as aforesaid, and by reason of its carelessness and negligence in ordering the plaintiff into said place without warning him of the danger. The expenses incurred by the plaintiff in and about having his eye treated are shown, which medical bill, it is charged, the defendant refused to pay; and it is further alleged that the sight of the left eye is totally destroyed, and that the blindness thereof is permanent.

The sufficiency of the complaint is not discussed by appellant's counsel, but they contend that the evidence given upon the trial is not sufficient to entitle the plaintiff to recover upon his complaint. The infirmity, however, of the argument advanced upon this question, is that counsel seemingly request that we disregard the well-settled rule and assume the task of attempting to weigh the evidence, or, in other words, that we consider only the evidence most favorable to appellant, and thereby reverse the rule of appellate procedure which requires that we, in reviewing the sufficiency of evidence in cases upon appeal, must consider the evidence only which is most favorable to the verdict of the jury or finding of the court as the case may be. There is evidence in the record which may be said fully to sustain appellee's right to recover upon the action set up in his complaint.

The following are some of the material facts which there is evidence in the record to establish: At and prior to the time of the accident in question, which occurred on the morning of December 20, 1899, appellee was in the employ of appellant company, and had been in its employ for about six months. Appellant is a corporation, and at the time of the accident operated a rolling-mill or manufacturing plant in Madison county, Indiana, and was engaged therein in manufacturing iron bars, rods, etc., by means of machinery operated by steam. Appellee was not a skilled workman, and was employed by appellant as a common laborer, and received wages as such, and was classed in and worked with what was known as the "floating gang" in the rolling-mill doing first one kind of work, and then another. On December 18, 1899, it seems that the piston-rod of the engine which propelled the machinery of the mill broke, and this caused the work in the mill to be suspended until the rod could be repaired. After the breaking of this rod, one Kelly, appellant's foreman, who was in the control and management of its mill, and in the control and management of its employes in the department where appellee worked, went with appellee to what was known as the "scrap heap." Kelly, it appears, selected a piece of scrap steel from this heap. The metal selected was soft steel, of which fact Kelly had knowledge. He and appellee carried the piece of steel to a turning lathe in the mill, and the foreman then directed him to turn out, by means of the lathe, a new piston-rod for the engine, to be used in the place and stead of the one which had been broken. Appellee as ordered by the foreman performed the work of turning the rod, but he did it under the directions of the foreman in respect to the manner in which it should be performed. It is disclosed that the foreman was in a hurry to have the new rod completed in order that the work in the mill might not be delayed any longer than possible. At his instance and directions appellee was required to work continuously at the job of turning the rod for forty-eight hours, without any sleep, and did not finish it until 4 o'clock on the morning of December 20, 1899. His regular turn of work consisted generally of a period of ten hours. The new rod, when turned, was round and about five feet long and three inches in diameter, and, with its head, weighed 250 pounds. What is termed a "follower head," to be used on the rod, was circular, and about twenty inches in diameter. Through the center of this head there was an opening, the diameter of which was, to a small extent, greater than the diameter of the rod, and into this opening the end of the rod was to be inserted. After the rod had been inserted it was necessary to fasten or clinch the head so as to hold it in place by pounding down the end of the rod which projects through the follower head. Appellant's mill had the necessary blacksmith shops, forges, lathes, drill-press, anvils, and the ordinary repairing appliances belonging to such a mill, but it did not have machinery for building or rebuilding engines. After the turning of the piston-rod had been completed at 4 o'clock in the morning, Kelly, the foreman, then proceeded according to his own methods to have the end of the rod riveted or fastened in the follower head; and, to carry out this purpose, he o...