Sievers v. The Peters Box and Lumber Company
| Decision Date | 15 June 1898 |
| Docket Number | 17,958 |
| Citation | 50 N.E. 877,151 Ind. 642 |
| Parties | Sievers v. The Peters Box and Lumber Company |
| Court | Indiana Supreme Court |
Rehearing Denied Dec. 22, 1898, Reported at: Ind. 642 at 662.
From the Allen Circuit Court.
Affirmed.
Henry Colerick, J. E. K. France, W. G. Colerick and W. E. Colerick for appellant.
W. H H. Miller, F. Winter and J. B. Elam, for appellee.
This action was brought by appellant against appellee to recover damages for personal injuries which he sustained by reason of the falling of an elevator in the factory of appellee. The cause was tried by a jury, and a general verdict returned in favor of appellee, and also answers to interrogatories submitted by the court at the request of the parties; and the court, over a motion for a judgment in his favor for $ 5,000, on the answers to the interrogatories, notwithstanding the general verdict, and for a new trial, rendered judgment in favor of appellee.
It is first insisted by appellant that the court erred in overruling his motion for judgment on the answers to the interrogatories, notwithstanding the general verdict. It is found by the answers to the interrogatories: That appellee was a corporation engaged in the manufacture of furniture in the city of Ft. Wayne, and that appellant an employe of appellee, was injured on the 15th of December, 1892, by the falling of an elevator in appellee's factory; that appellee directed Kaiser, one of its employes, to construct a freight elevator and gave him complete authority to determine the kind of elevator and the manner of its construction. Said Kaiser had never constructed an elevator, or aided in the construction of one, prior to this time. He was a competent millwright and had followed the business for twenty years, and had large experience in putting in mill machinery of all kinds, including worm gearing, and was a reasonably competent man to build the elevator in question. Appellee instructed and authorized him to procure from the Ft. Wayne Iron Works whatever was necessary and proper to construct and equip said elevator. Said Ft. Wayne Iron Works was a competent and reputable manufacturer of such materials; and Kaiser procured said firm to make and construct the wheels, pulleys, and the worm gearing and shaft for said elevator, and he had full and complete charge of the construction of said elevator, which he constructed and attempted to put in operation in appellee's said factory, it being the one upon which appellant was injured. Said elevator was constructed and intended by appellee for carrying freight only, and not for passengers, or for the use of employes in riding to and from their places of work. Said elevator was operated by what is known as a "worm gearing," and such worm gearing is used by some of the best manufacturers of elevators, and was a reasonably proper appliance to be used in the construction and operation of an elevator. The worm gearing and other appliances for propelling said elevator were near the ceiling of the first floor of appellee's factory, in full view of a person about to ride on said elevator. There were no safety appliances of any kind attached to or used in connection with said elevator to prevent the same from falling while persons were riding in or on the same, excepting such protection as might be afforded by the worm gearing; and that such worm gearing was, in and of itself, a sufficient safety appliance, if properly fastened on the shaft, and it was the only appliance that should have been used; and that said elevator was not, at the time appellant was injured, unsafe for persons to ride upon by reason of the absence therefrom of proper and sufficient safety appliances. If at any time the elevator was above the first floor, and the worm gearing became displaced or disabled, the elevator would fall. While said elevator was being constructed, or after its completion, the attention of the president of appellee was called to the absence therefrom of safety appliances, and the necessity of their use was suggested to him. Said elevator was completed on December 15, 1892, when the first attempt was made to operate it. During the forenoon of that day, the president of the appellee company called the attention of Kaiser to the fact that there was something wrong with the elevator, and that it did not work right. On said 15th day of December, the day appellant was injured, said Kaiser was in charge of said elevator, experimenting and testing the same. Appellant was a carpenter and had been in the service of appellee as such, working in and about appellee's factory, from April, 1892, until the time of his injury on December 15, and on said day was engaged in laying a floor on the third floor of said factory, or in an addition thereto, then in process of construction. That on said day appellant was in the factory, on his way to his work on one of the upper floors of said factory, when he was invited by said Kaiser to ride on said elevator; and he entered on said elevator for the purpose of being conveyed to where he was required to work, and he entered upon and rode upon said elevator solely for his own convenience or pleasure, and without invitation or request from appellee or any of its officers, but because he was invited by said Kaiser, and not otherwise; that while appellant was on said elevator, in response to said invitation, the elevator fell, and thereby fractured appellant's right leg.
Appellant when he accepted the invitation of said Kaiser to ride on said elevator, supposed and believed that said Kaiser had authority from appellee to extend to him said invitation, and, at the time he got upon said elevator, believed that he could with safety ride thereon. That prior to the time appellant was injured, no written or printed notice was posted in appellee's factory, stating that employes must or should not ride upon said elevator; nor was appellant, prior to the time he was injured, notified by appellee, or any other person, that employes were not permitted to ride on said elevator, or that the same was unsafe or dangerous to ride in or on. Appellant knew, prior to his injury, that a new freight elevator was in process of construction, and he did not know or have any reason to believe that it had ever been operated before the day he received his injuries. Said appellant was a practical carpenter, of many years' experience, and said elevator was so constructed as to be apparent to any person of ordinary intelligence, looking at the same, that it was intended to carry freight only, and not passengers; and appellant could, by the exercise of reasonable care at the time he went on said elevator, have discovered that said elevator was intended for carrying freight only, and that the same was not provided with dogs, clutches, and brakes. There were safe and suitable stairways provided by appellee for appellant and other employes to go from the first to the third floor of said factory, and the new addition thereto; and appellant had frequently used the same, and was familiar with them and their use for going to the place where he was working on the day of his injury, and appellant had no duty to perform with reference to said elevator, and could have gone safely to his place of work at the time of the injury without going upon said elevator, and could have performed all of his duties for which he was employed by appellee without going upon said elevator. Prior to the time on said day that appellant was injured, many of the employes of appellant rode upon said elevator, and furniture and other freight owned by appellant had been transported on said elevator on said day in charge of employes of appellee, who rode on said elevator with said freight. The president and secretary of appellee corporation rode on said elevator on said day. Appellee and its officers did not know that any of its employes other than Kaiser were riding upon said elevator before and at the time of the accident in which appellant was injured, nor had appellee instructed or authorized Kaiser to invite its employes to ride on said elevator. That prior to appellant's injury, appellee did not consent that appellant and other men in the factory other than Kaiser should ride upon said elevator, nor did anyone except Kaiser have any authority or permission to ride thereon. And appellee did not know before appellant was injured that freight was being carried upon said elevator, nor did appellee before said injury direct or consent by any of its officers to the use of said elevator for carrying freight. That the falling of said elevator was caused solely by the slipping of the worm pinion off of its shaft, and said worm gearing was manufactured and put together by the Ft. Wayne Iron Works. Said worm pinion was examined by said Kaiser before he put it up in appellee's factory, for the purpose of seeing whether it and the shaft were properly put together; and he found and concluded that the worm pinion and shaft were properly keyed and put together before he used them in the building of said elevator; and that said Kaiser was competent to examine and know whether said worm pinion and shaft were properly put together. If suitable brakes, dogs, clamps, or other safety appliances had been attached to and used in connection with said elevator, the same would not have fallen when said worm pinion slipped off of its shaft; but said elevator was not unsafe on account of the absence of proper and sufficient safety appliances. The openings in the floor of appellee's factory through which said elevator was operated were also used by appellee for taking up and down with a rope and tackle, long pieces of furniture, such as bars and counters, and materials which could not be carried on said elevator, and...
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