Sanitary Can Co. v. McKinney

• Decision Date: 13 February 1913
• Docket Number: No. 7,808.,7,808.
• Parties: SANITARY CAN CO. v. McKINNEY et al.
• Court: Indiana Appellate Court

52 Ind.App. 379

100 N.E. 785

SANITARY CAN CO.

v.McKINNEY et al.

No. 7,808.

Appellate Court of Indiana, Division No. 2.

Feb. 13, 1913.

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by Thomas McKinney and others against the Sanitary Can Company. From a judgment for plaintiffs, defendant appeals. Reversed with directions.John B. Elam, James W. Fesler, and Harvey J. Elam, all of Indianapolis, for appellant. Vincent G. Clifford and Adolph G. Emhardt, both of Indianapolis, for appellees.

ADAMS, J.

Suit by appellee against appellant for damages on account of personal injuries charged to have been caused by the negligence of appellant in failing to guard certain cogwheels, and failing to properly instruct appellee as to the use and operation of the machine at which he was put to work.

The averments of the complaint are substantially: That appellee on August 12, 1908, the date of his injury, was an infant 14 years of age, without mechanical training, and without experience in the use and operation of machinery. That he was employed by the appellant about June 20, 1908, for the purpose of picking up cans, carrying water, and watching can chutes; that he performed such duties until about the - day of -, 1908, at which time the foreman under whose orders he worked directed and ordered him to work upon and operate a machine commonly known as a “lock seamer” without properly instructing him as to the use and operation of said machine. The machine was operated by power conveyed through a system of shafting and belts. It consisted of a large iron frame in front of which and at the height of about four feet from the floor was a wooden apron or table attached to said frame, about 18 inches wide, projecting out in front of said machine, on which the persons operating the same placed pieces of tin, which were by said machine automatically trimmed, molded, and soldered into bodies of cans. The tin chips or trimmings from the pieces of tin fed into the machine fell into cans or receptacles underneath the machine below and beyond the table or apron, which cans or receptacles rested on a framework of the machine about two feet from the floor. Directly in front of and slightly below the place where the receptacles were located was the gearing and cogwheels by which the power was transmitted. These cogwheels were not guarded, but were carelessly and negligently left uncovered and exposed by appellant, and were very dangerous to persons operating the machine, as was well known to appellant for a long time prior to the injury to appellee. That the same might have been guarded and made safe at a reasonable cost, so as to protect employés from injury in the operation of the machine, without impairing its usefulness or efficiency. It was a part of the duty of persons operating said machine to remove and empty the cans or receptacles whenever they became filled. That on August 12, 1908, while appellee was feeding and operating the machine, the receptacles became filled and were running over with tin chips or trimmings, and, in order to empty the same, it was necessary for appellee to, and he did, remove an old box which stood below the table attached to said machine, and reached underneath the body or frame of the machine, and, while so reaching, his clothing was caught in the unguarded cogwheels, and he was injured in the manner specifically set out. The injury suffered by appellee was caused solely by the failure and neglect of appellant to carefully guard the gearing and cogs, as required by law. While it is averred in general terms that appellee was directed to go to work on a certain machine “without properly instructing him as to the use and operation of said machine,” it will be noted from the concluding averment that the injury was caused solely by the failure and neglect of appellant to carefully guard the gearing and cogs. If the failure to guard was the sole cause of the injury, then such failure must be deemed to be the theory upon which the right to recover is predicated.

[1] Appellant did not file a demurrer to the complaint, but challenges its sufficiency to state a cause of action by assignment of errors in this court. While it does not clearly appear from the averments of the complaint how the machine was constructed or operated, or the manner in which appellee was caught in the gearing, the complaint is sufficient to bar another action for the same injury. This is the test applied to complaints when questioned for the first time in this court. Indianapolis, etc., Co. v. Miller, 40 Ind. App. 403, 404, 82 N. E. 113;Elwood Bank v. Mock, 40 Ind. App. 685, 686, 82 N. E. 1003. The jury returned a general verdict for appellee, and with their general verdict returned answers to numerous interrogatories. Appellant moved the court for judgment on the answers to interrogatories notwithstanding the general verdict. The motion was overruled, and this ruling is the second error assigned and relied upon for reversal.

[2] It is well settled that all reasonable presumptions will be indulged in support of the general verdict and against the special answers, and if the general verdict, thus aided, is not in irreconcilable conflict with the answers, it must stand. This rule is general, and the reason therefor is that the jury is required to find upon all issuable facts proved in the case, while the court, in determining the force of isolated facts disclosed by the answers to interrogatories, cannot know what other facts relating to the same matters were properly before the jury to warrant their general verdict. City of South Bend v. Turner, 156 Ind. 418, 423, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200. The antagonism between the general verdict and the special answers must be apparent on the face of the record, and beyond the possibility of being removed by any evidence admissible under the issues, before the court is authorized to direct a judgment in favor of the party against whom a general verdict has been returned. Harmon v. Foran, 48 Ind. App. 262, 266, 94 N. E. 1050;Ittenbach v. Thomas, 48 Ind. App. 420, 427-434, 96 N. E. 21;Indianapolis Union Ry. Co. v. Ott, 11 Ind. App. 564, 568, 38 N. E. 842, 39 N. E. 529;McCoy v. Kokomo R, etc., Co., 158 Ind. 662, 663, 64 N. E 92, and cases cited. In McCoy v. Kokomo R., etc., Co., supra, the court said; “In passing upon a motion for judgment notwithstanding the verdict, it should be borne in mind that the verdict necessarily covers the whole issue, and that it solves every material fact against the party against whom it is rendered. To enable the latter successfully to interpose the special findings of the jury upon particular questions of fact as a reason for judgment in his...