Robinson & Co. v. Etter
| Decision Date | 09 April 1902 |
| Docket Number | 3,479 |
| Citation | 63 N.E. 767,30 Ind.App. 253 |
| Court | Indiana Appellate Court |
| Parties | ROBINSON & CO. v. ETTER |
Rehearing denied January 7, 1903.
From Wayne Circuit Court; H. C. Fox, Judge.
Action by John Etter against Robinson & Co. for damages for personal injuries. From a judgment for plaintiff, defendant appeals.
Affirmed.
E. E Stevenson and J. L. Rupe, for appellant.
J. F Robbins, R. A. Jackson and H. C. Starr, for appellee.
This was an action for damages growing out of a personal injury received by appellee on the 9th of March, 1899, while a servant in the employ of appellant, operating a machine commonly called a ripsaw. Appellant is a corporation engaged in the manufacture of threshers, engines, sawmills, etc., operating its plant in the city of Richmond. At the time appellee received his injury he was a man thirty-six years of age, a carpenter by trade, and had been in the employ of appellant several weeks prior to the 9th of March, when, while engaged in operating the ripsaw, his hand was caught by the saw and all the fingers of his left hand were cut off.
The complaint was in a single paragraph. Appellant's demurrer to the complaint was overruled, and an answer filed in two paragraphs, --the first a general denial, the second averring facts purporting to show that the injury resulted from a risk assumed as an incident to the employment. Appellee's general denial closed the issues. Upon the request of the appellant seven interrogatories were submitted to and answered by the jury. These were returned with a general verdict for the appellee. Appellant's motion for judgment upon the special findings was overruled, as was also its motion for a new trial, and thereupon the court rendered a judgment in favor of the appellee for $ 2,000, that being the amount of the verdict returned by the jury.
The errors assigned and argued are: (1) Error of the trial court in overruling appellant's demurrer to the complaint; (2) error in overruling the motion for a new trial; (3) error in overruling appellant's motion for judgment upon the special findings.
The complaint, as heretofore stated, is in a single paragraph and avers that appellee was, on the 9th day of March, and for several weeks prior thereto, in the employ of the appellant and was ignorant and inexperienced in the operation of a ripsaw, and was not acquainted with the dangers incident to the operation thereof; that prior to the 9th day of March, and at the time he was employed by the appellant, he informed the appellant that he was ignorant and inexperienced, and thereupon appellant stated to him, by its superintendent, that the work to which he should be assigned would not be dangerous, and that he would be given all necessary and proper instruction in order to enable him safely to perform such work, all of which representations and statements appellee believed and relied upon; that appellant has as a part of its equipment of machinery a certain circular saw set in a saw-table which was connected with the steam power by the necessary mechanical devices, which, when in use, caused the said saw to revolve with great rapidity in and through the slot or opening in the top of said table; the said saw was used by appellant in sawing and ripping pieces of wood and timber which were used by appellant in said business; that in order to saw the timber on said table it was necessary for the servant of the appellant to hold the piece of timber which was being sawed in a horizontal position upon said table, and by means of a guide to push such timber against the saw, by which means the timber would be sawed into the lengths and thicknesses desired; that it was necessary to the safe operation of said saw, and to the safety of the appellant's servant so operating it, that the top of the saw-table be level and even, and that the slot in the saw-table in which the saw revolved should not be irregular in shape, or of greater width than was necessary for the saw to revolve in, because if defective in this regard it would cause the timber held in the hand of the servant to catch upon the saw and be twisted or torn from the servant's hands and cause the hand of such servant to be thrown against the revolving saw. It is further averred by the appellee that the appellant carelessly and negligently permitted said saw-table to become worn and uneven upon its surface, and carelessly and negligently permitted the slot in which the saw revolved to become of much greater width than the thickness of the saw, so that the said slot or opening in the top of said table, and the uneven and worn condition of the surface of said table, caused the said appliances to be dangerous and unsafe, and its use likely to result in serious injury to the servant so operating it, which said defects and dangers were at all times known to the appellant, and which were unknown to the appellee because of his inexperience and ignorance, and that the appellant, notwithstanding the facts as aforesaid, at all times carelessly and negligently permitted said machine and table to be and remain in such defective and dangerous condition. Appellee further avers that on said date he did, at the request and direction of the appellant, and he, at that time, being ignorant of all danger to him caused by said defective condition of the table and saw, undertake to saw a certain piece of wood about sixteen inches long into strips seven-eighths of an inch in thickness; that, owing to the carelessness and negligence of appellant, he was not provided with anything to protect or guard his hands from injury, and not having been at any time instructed by appellant that it was necessary for him to have a stick or implement for that purpose, and not being instructed at any time as to the manner of operating said saw, he proceeded with his work of sawing the piece of wood into the thickness aforesaid, and that for the purpose of so doing he laid the piece of wood upon the table, and in a careful manner pushed the...
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