South Bend Chilled Plow Co. v. Cissne

• Decision Date: 09 May 1905
• Docket Number: No. 4,859.,4,859.
• Citation: 35 Ind.App. 373,74 N.E. 282
• Parties: SOUTH BEND CHILLED PLOW CO. v. CISSNE.
• Court: Indiana Appellate Court

35 Ind.App. 373

74 N.E. 282

SOUTH BEND CHILLED PLOW CO.

v.CISSNE.

No. 4,859.

Appellate Court of Indiana, Division No. 1.

May 9, 1905.

Appeal from Circuit Court, La Porte County; John C. Richter, Judge.

Action by Oliver H. Cissne against the South Bend Chilled Plow Company. From a judgment for plaintiff, defendant appeals. Reversed.

Anderson, Du Shane & Crabill and Hubbard & Hubbard, for appellant. Meyer & Drummond, for appellee.

MYERS, J.

The amended complaint in this action, as stated by the appellee in the court below, avers that: “The above-named plaintiff complains of the above-named defendant, and says: That on the 21st day of January, 1901, he was employed by said defendant in the use of a truck in propelling the same from place to place in the factory of said defendant in the city of South Bend, Indiana. That said truck was provided with screws and bolts, which said screws and bolts said plaintiff was required, as a part of his employment, to keep tight in place. That, while in the use of said truck aforesaid in said factory on said day, a bolt on said truck became loose, and said plaintiff was then and there engaged in his work as aforesaid, and was preparing to fasten said bolt pursuant to said employment. Said plaintiff at said time of said preparation to tighten and fasten said bolt was at and near a certain pile of manufactured ware, which was the product of said factory and manufactured ware of said defendant. Said defendant, at said time and place, carelessly and negligently failed to provide a safe working place for said plaintiff by then and there carelessly and negligently failing to provide sufficient space in which to pile said manufactured ware, thus compelling the same to be piled to a great height. That said pile was, by reason of the lack of space as aforesaid, then and there of great height and top-heavy, and made liable to topple over and fall upon plaintiff or any other person while at work in said place, and was then and there negligently caused to be so piled and constructed by the defendant. Plaintiff avers that the manner in which said manufactured ware was piled as aforesaid, was not apparent to plaintiff, and he did not know that said place was dangerous and unsafe, and that said pile was top-heavy, and liable to fall as aforesaid, at the time he was at work as aforesaid, pursuant to his employment; that the defendant knew that said place was an unsafe place to work and dangerous to the plaintiff at said time; that said pile of manufactured ware, by reason of the negligence of defendant as aforesaid in failing to provide sufficient space and room for its piling, was then and there thrown and precipitated upon this plaintiff, so that said plaintiff thereby became seriously injured and hurt, and by reason of defendant's negligence as aforesaid, plaintiff lost his right leg and was compelled to have the same amputated, and suffered great physical pain and mental anguish, and is permanently injured and deformed.” Appellant demurred to this complaint for want of facts, which demurrer was by the court overruled, and exception reserved. Other proceedings were had leading up to the submission of this cause to a jury for trial. Finding and judgment for the appellee.

The first question presented is: Does the complaint state facts sufficient to constitute a cause of action? The complaint proceeds upon the theory of an unsafe place to work, made so by lack of space in which to pile the manufactured ware of appellant. The complaint is fatally defective, and the demurrer should have been sustained. Nowhere in the pleading do we find a direct averment that in the preparation appellee was making to tighten the bolt, nor does it appear that in performing the work of propelling the truck from place to place in appellant's factory, he was required to go near or about the pile of ware which fell and caused the injury about which he complains. If the allegations of the complaint were otherwise sufficient to charge appellant with not providing a reasonably safe place to work, yet, unless it was the duty of appellee and within the scope of his employment to go into or work in the place made unsafe by appellant's negligent acts, appellant would owe him no duty to protect him from injury received at a place which he may have entered out of curiosity or other reason best known to himself. The settled rules of law prohibit us from drawing inferences or deductions from general allegations of a pleading in order to supply a material fact. We are to deal only with the language employed by the pleader, and from such language such material facts must be found as will, under the settled rules of law governing cases of this kind, be sufficient to make a proper case. It has been said by this court that in construing a pleading the language employed...