Salem-Bedford Stone Company v. O'Brien

• Decision Date: 19 March 1895
• Docket Number: 1,574
• Citation: 40 N.E. 430,12 Ind.App. 217
• Parties: THE SALEM-BEDFORD STONE COMPANY v. O'BRIEN
• Court: Indiana Appellate Court

40 N.E. 430

12 Ind.App. 217

THE SALEM-BEDFORD STONE COMPANY v. O'BRIEN

No. 1,574

Court of Appeals of Indiana

March 19, 1895

From the Lawrence Circuit Court.

Judgment reversed.

W. H Martin, for appellant.

M. F Dunn, for appellee.

OPINION

REINHARD, J.

Appellee sued the appellant and recovered damages in the sum of $ 3,000 for a personal injury received while in the employment of the appellant.

The complaint is in two paragraphs, to each of which a demurrer was overruled.

The jury answered certain interrogatories, and the appellant moved for a judgment upon these notwithstanding the general verdict, which motion was overruled, as was also the appellant's motion for a new trial.

Without entering upon a discussion of the questions arising from the ruling of the court upon the demurrer and the motion for a judgment notwithstanding the verdict, we deem it sufficient to say that the court committed no error in these rulings.

We regard each of the paragraphs of the complaint as sufficient, and the answers to interrogatories in harmony with the general verdict.

The serious question in the case is whether there is sufficient evidence to support the verdict of the jury. The evidence shows that the appellant is a corporation operating a stone quarry or quarries, and, at the time of appellee's injury, was engaged in the erection of a stone saw mill, with its machinery, saws, planes and "travelers" in the vicinity of Bedford. The mill was not yet so far completed that any work could be done with it, and those employed at work and labor about the mill were engaged in the erection and construction of the mill and "travelers," and in the placing of the machinery. Among the machinery in process of erection and completion was a certain "traveler," or movable derrick, which was intended to be operated on an elevated road or track from fifteen to eighteen feet or more above the ground, and which moved back and forth on iron rails. Over the machinery of this traveler was a "house" or "cab," and immediately beneath this, resting upon the truck of the traveler, there were certain timbers and screws denominated "chords" and "trusses," which served to support and strengthen the house or cab.

At the end of the traveler, just below the sides of the truck upon which the chords and trusses rested, there was a rod or shaft, to which were attached certain cogs or cogwheels, by means of which the power in the cab was transmitted to the wheels, which caused the traveler to move.

At the time of the accident there was no steam in the engine in the cab. The traveler was not complete, but was easily moved on the iron tramway by means of the wheels, a gust of wind being sufficient to start it. To aid in the erection and construction of the mill and traveler, the appellant employed one Mathias H. Pearson as superintendent, who was in full charge of said work. One Elijah Roberts was also at work in the cab or house subject to the orders of said Pearson. Some twenty-two days before the accident, the appellee was employed by said Pearson to work about said plant as an ordinary laborer, at the price of $ 1.25 per day, at such work as he was required to do. For some five or six days prior to the accident, the appellee had been at work on the traveler, and on the day of the accident had been sent to work beneath the cab of the traveler, and between the chords thereof, as he says, in the erection of a scaffold. While thus at work he had occasion, as he testified, to go down to the ground for a piece of timber to put into said scaffold. He passed from beneath the cab between the chords with a view to stepping down from the truck to the tramway, and walking from there to the east side of the traveler, where there was a ladder standing, by means of which he intended to descend to the ground. While in the act of passing from beneath the cab down upon the track or tramway, he stopped under the cab, in the vacant space between said chords, with one of his feet resting in the cogwheels of said shaft, "for two or three minutes," as appellee testified, and remained in this position until, a sudden storm or squall having arisen, a gust of wind moved the traveler, which caused the cogwheels to resolve and catch the appellee's foot between them, and inflicted the injury of which he complains.

There is, also, evidence tending to prove that the wheels of the traveler were not chocked or stayed in any manner, and that if they had been the traveler would not have been moved by the wind and the accident would not have happened. We have given the evidence in the light most favorable to the appellee, as he is entitled to have it construed.

The following cut of the traveler may serve to outline the situation and help to illustrate the main features of the evidence:

[SEE EXHIBIT IN ORIGINAL]

To render the appellant liable, it must appear from the evidence:

First. That appellant was guilty of negligence, which was the proximate cause of appellee's injury.

Second. That the appellee was free from any negligence which proximately contributed to the injury.

The negligence relied upon by the appellee was the act of appellant in leaving the wheels of the traveler unchocked or unfastened.

Actionable negligence consists in the breach of some duty owing from the defendant to the plaintiff, by reason of which the plaintiff was injured. Morrow v. Sweeney, 10 Ind.App. 626, 38 N.E. 187; Carskaddon v. Mills, 5 Ind.App. 22, 31 N.E. 559; Thiele v. McManus, 3 Ind.App. 132, 28 N.E. 327.

The duty must be one which the defendant owes to the plaintiff although he may owe this duty to the plaintiff in connection with other persons. If the defendant owes a duty but does not owe it to the...