Robertson v. ford

• Decision Date: 21 April 1905
• Docket Number: 20,517
• Citation: 74 N.E. 1,164 Ind. 538
• Parties: Robertson v. Ford
• Court: Indiana Supreme Court

74 N.E. 1

164 Ind. 538

Robertson v. Ford

No. 20,517

Supreme Court of Indiana

April 21, 1905

From Howard Circuit Court; James F. Elliott, Judge.

Action by Daniel J. Robertson against Charles A. Ford as surviving partner of the firm of Ford & Donnelly. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

John E Moore and Freeman Cooper, for appellant.

J. C Blacklidge, C. C. Shirley, Conrad Wolf and Elmer E Stevenson, for appellee.

OPINION

Jordan, J.

Appellant sued Charles A. Ford and William Donnelly, partners doing business at Kokomo, Indiana, under the firm name of Ford & Donnelly, to recover for personal injuries received while in the employ of said partners, by reason of alleged negligence. A demurrer for want of facts was sustained to the complaint, and upon appellant's electing to abide by his pleading, judgment was rendered against him for costs. After the judgment was rendered, but prior to this appeal, William Donnelly died, and the appeal is prosecuted against Charles A. Ford, as a surviving partner, under the rule affirmed in Hess v. Lowrey, 122 Ind. 225, 7 L.R.A. 90, 17 Am. St. 355, 23 N.E. 156.

The only error assigned is based on the ruling of the trial court in sustaining the demurrer to the complaint, the material allegations of which are as follows: Charles A. Ford and William Donnelly, on January 26, 1903, and prior thereto, were partners engaged in conducting and carrying on a foundry in the city of Kokomo, Howard county, Indiana, under the firm name of Ford & Donnelly. Appellant at and before said date was in their employ, engaged at work in their foundry in operating and assisting to operate a machine denominated a "rattler," which was used for the purpose of cleaning castings. It was propelled by steam, and had a main line shaft which entered a room wherein the machine was operated. The north end of this shaft was fastened to a post, and a belt extended from the pulley on the main line to a countershaft immediately over said rattler. On this countershaft were two pulleys--one loose and the other tight. A belt extended down from the countershaft to the pulley on the rattler. It was necessary and practical to attach a belt-shifter to said machinery, and by means thereof the belt which connected with the line shaft could be quickly shifted from the tight or fixed pulley to the loose one on the countershaft, and thereby stop the running of the rattler. The loose pulley and belt-shifter were necessary and indispensable for such purpose, and further to secure the proper and safe running of the machine. The defendants, it appears, had provided a loose pulley for the countershaft, and also a belt-shifter for the purpose of throwing the belt off and on the loose pulley. Some ten days or two weeks prior to the time that appellant sustained his injuries, the loose pulley on said shaft became fixed or fast, and the belt-shifter then in use was so broken and impaired that it could not be employed for throwing the belt, but nevertheless the defendants continued to operate the rattler without a loose pulley and a belt-shifter, with the full knowledge that both of the said appliances had been impaired, and were in such a condition that they could not be, and were not, used for the purpose for which they were intended. Although ample time had elapsed, before appellant was injured, in which the defendants could have repaired the loose pulley and belt-shifter, but it is alleged that they failed to make said repairs or to provide any means by which the said machine could be stopped; and by reason of the failure to repair said appliances, or to provide other means for stopping the rattler in question, appellant, together with other employes of the defendants, was compelled to and did use a ladder to ascend to the line shaft and throw, by means of the hand, the belt which propelled said small shaft and rattler, that being the only method by which the running of the rattler could be stopped. When the employes of the defendants ascended the ladder, as it was their duty to do, in order to throw the belt by hand, their hands, while engaged in throwing the belt, would come dangerously close to the line shaft. This latter shaft was not guarded and protected, as it ought to and might have been, of all of which facts the defendants had full knowledge long prior to the date upon which appellant received his injuries. On January 26, 1903, it became necessary to stop the rattler, and appellant for that purpose secured a ladder and placed it against the post which held the north end of the line shaft, and, in the line of his duty, ascended the ladder for the purpose of throwing the belt by the means of his hand, and, as he "reached out" his hand to throw the belt, his working jacket was caught in said line shaft, which at that time was rapidly revolving, and was not guarded and protected by guards of any kind, as it ought to and could have been guarded and protected. His body was thereby suddenly and with great force thrown around said shaft, and by reason thereof he was injured, bruised and lacerated, and thereby was permanently injured, etc.

It is certainly evident that, under the facts averred in the complaint, no liability against the defendants at common law in favor of appellant is shown. This must be true for the reason alone, if for no other, that it is apparent that appellant had knowledge that the belt-shifter in question was broken and out of repair, and that the line shaft by which he was injured was unguarded. Under these circumstances when tested by the rule at common law, appellant will be held to have assumed the risk or danger incident thereto, in the absence of any showing that after he acquired such knowledge he was induced to remain in the services of the defendants through their promise to repair or make the same safe. Hattaway v. Atlanta Steel, etc., Co. (1900), 155 Ind. 507, 58 N.E. 718; Whitcomb v. Standard Oil Co. (1899), 153 Ind. 513, 55 N.E. 440; Wabash R. Co. v. Ray (1899), 152 Ind. 392, 51 N.E. 920; Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149, 58 L.R.A. 944, 64 N.E. 610; Brazil Block Coal Co. v. Gibson (1903), 160 Ind. 319, 98 Am. St. 281, 66 N.E. 882.

Counsel for appellant argue that under the facts the defendants are liable because they are shown to have neglected to perform a duty imposed by the provisions of what is known as the "factory act" (Acts 1899, p. 231, § 7087a et seq. Burns 1901). There is no general averment of negligence in the complaint to show that the defendants had failed to perform any duty enjoined upon them by the statute in question. It is difficult, under the facts outlined in the complaint, to discover the true theory upon which it proceeds in the attempt to state a cause of action. The pleading after alleging the necessity of a belt-shifter to be used for the purpose of shifting from one pulley to another the belt connecting the small shaft with the line shaft, and thereby, when necessary, stopping the rattler, then proceeds to aver that, about two weeks before the accident by which appellant was injured, the belt-shifter provided by the defendants for that purpose had been broken, and was, at the time of the accident, out of repair, and could not be used in shifting the belt, all of which, it is alleged, was well known to the defendants. It appears from the facts averred that after the defendants knew of the condition of the belt-shifter, as alleged, ample time was afforded for them to have repaired the shifter, or to have furnished other means for stopping the machine in controversy. They, however, failed to do so, and by reason thereof it is charged that appellant, together with others of their employes, was compelled to ascend to the line shaft by the use of a ladder, and throw by hand the belt by which this shafting was propelled, and in this manner stop the running of the rattler. It is charged that this line shaft was not guarded and protected as it ought to have been and might have been, all of which was well known to the defendants. It appears that appellant, on the day he was injured, employed a ladder in ascending to or reaching the line shaft by which he was injured, for the purpose of throwing the belt by means of his hand; and, while in the act of extending or stretching out his hand for that purpose, his working jacket was caught by the shaft, and thereby he was injured as alleged. His counsel, in their argument, apparently contend that the...