Standard Forgings Company v. Saffel

• Decision Date: 03 November 1911
• Docket Number: 21,960
• Citation: 96 N.E. 321,176 Ind. 417
• Parties: Standard Forgings Company v. Saffel
• Court: Indiana Supreme Court

96 N.E. 321

176 Ind. 417

Standard Forgings Company v. Saffel

No. 21,960

Supreme Court of Indiana

November 3, 1911

From Porter Circuit Court; Willis C. McMahan, Judge.

Action by Paul Saffel against the Standard Forgings Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p 590.

Affirmed.

Bomberger Sawyer & Curtis, for appellant.

F. N Gavit and J. E. Westfall, for appellee.

OPINION

Morris, J.

Appellee sued appellant for damages for personal injuries. There was a trial by jury, a verdict for plaintiff, and judgment on the verdict for $ 1,800. The court overruled a motion for a new trial.

The errors assigned and discussed are the overruling of appellant's demurrer to the amended complaint, and overruling the motion for a new trial.

So much of the amended complaint as requires consideration is as follows: "That defendant is a corporation duly organized as such, and was, at the time plaintiff received the injuries hereinafter alleged, engaged in constructing an addition to a certain manufacturing plant then operated by it, and plaintiff was employed by defendant to work as a common laborer in and about said portion of said plant while said addition was being constructed, and was acting in the course of his said employment; that in the course of his said employment plaintiff was required to, and did assist other workmen at said plant in digging a certain hole in the earth, ten feet wide and more than five feet deep; that on March 8, 1907, defendant carelessly and negligently directed plaintiff and such other workmen to dig said hole at a distance of two feet from a certain pile of iron bars, each bar being four feet long and six inches square, and weighing 650 pounds; that said pile of iron then consisted of such pieces piled to a width and breadth of four feet each and to a height of fifteen feet; that plaintiff at the time of digging said hole and at the time he received his injuries was required to and did conform to the orders and directions of one Johnson, who had full and complete authority from defendant to order and direct plaintiff in the performance of his work, and to require him to obey all such orders and directions; that on said March 8, 1907, said Johnson did, in pursuance of such authority, direct plaintiff to work near said pile of iron, and plaintiff did so work under the order and direction of said Johnson; that the soil underneath said pile of iron and between said pile of iron and the hole that was being dug, consisted of quicksand, saturated with water, and was, therefore, prone to cave in; that the condition and character of the soil was well known to defendant at and before plaintiff's injury; that defendant carelessly and negligently required plaintiff and said other workmen to dig said hole, without in any way protecting the sides thereof from caving in, or protecting said pile of iron to prevent it from falling upon plaintiff and said other workmen, if the sides of said hole and the soil underneath said pile of iron should give way and let said pile of iron fall into said hole; that plaintiff was without any knowledge as to the tendency of the soil to cave in from a pressure on the bank near the hole that was being dug; that he was of less than ordinary intelligence and experience, was incapable of speaking the English language, and, by reason of his inexperience and lack of intelligence, was incapable of comprehending the danger of said soil's caving into said hole from underneath said pile of iron, and precipitating said pile of iron into said hole upon him; that by reason of the fact that defendant had specially ordered him to work in said place, he believed it was safe to work therein at all times up to the time of his said injury; that on said day plaintiff and other workmen did, in obedience to said order and direction, proceed to dig said hole as directed, and when they dug it to a depth of five feet the earth underneath said pile of iron bars, by reason of the digging of said hole so near thereto, and by reason of the character and condition of the soil underneath said pile of iron bars, and intervening between it and said hole, gave way and slid into said hole, and said iron bars by reason thereof fell over into said hole, and some of said iron bars fell upon plaintiff's leg, and broke both bones thereof; that plaintiff's said injuries were caused by the carelessness and negligence of defendant, before alleged; that plaintiff at all times before his injury had no notice or knowledge of the danger of so working in said hole."

It is contended by appellant that the allegation that "defendant carelessly and negligently directed plaintiff * * * to dig said hole at a distance of two feet from a certain pile of iron bars," etc., is insufficient to charge negligence because no facts are alleged to show wherein defendant was negligent in so doing. Where sufficient facts are alleged to show the existence of a duty on the part of defendant, the characterization of an act as negligently done sufficiently charges negligence. Chicago, etc., R. Co. v. Lain (1908), 170 Ind. 84, 83 N.E. 632. No motion was filed by appellant to require the complaint to be made more specific and certain. The complaint sufficiently averred negligence to repel a demurrer. Effinger v. Fort Wayne, etc., Traction Co. (1911), 175 Ind. 175, 93 N.E. 855.

It is further claimed that the averment in the complaint, that foreman Johnson had "full and complete authority from defendant to order and direct plaintiff in the performance of his work, and to require him to obey all such orders and directions," is not an allegation of fact, but merely states a conclusion of the pleader. This position is not tenable. Knickerbocker Ice Co. v. Gray (1908), 171 Ind. 395, 84 N.E. 341.

Appellant also contends that the allegation that "the condition and character of the soil were well known to defendant at and before plaintiff's injury" is insufficient to allege that defendant knew of the condition of the soil when it ordered plaintiff to dig the hole, or that it ever had knowledge thereof until too late to warn him. Conceding that an averment of knowledge on the part of appellant was necessary, the averment was sufficient. Republic Iron and Steel Co. v. Ohler (1903), 161 Ind. 393, 68 N.E. 901; Indianapolis Terra Cotta Co. v. Wachstetter (1909), 44 Ind.App. 550, 88 N.E. 853.

It is finally contended that the complaint is deficient in failing to allege facts showing the practicability of protecting the sides of the pit during the progress of digging, and Peterson v. New Pittsburg Coal, etc., Co. (1898), 149 Ind. 260, 63 Am. St. 289, is cited to support this proposition.

The facts averred in the complaint make the practicability and necessity of protecting the sides of the pit so obvious as to render such allegation unnecessary. The complaint was sufficient to withstand appellant's objections thereto.

The motion for a new trial requires the consideration of the court's instructions to the jury and the sufficiency of the evidence to support the verdict.

In its first instruction, the court, in stating the substance of the complaint, told the jury that "plaintiff alleges that the iron bars fell upon him because the hole was dug too close to them." Appellant contends this was misleading and erroneous, because the complaint alleges that the caving resulted because the hole was so close to the iron bars. (Our italics.) This stricture does not deserve serious consideration.

The sixth instruction was as follows: "It is the duty of the master to furnish its servants with a reasonably safe place in which to perform their work. The master's duty is to exercise reasonable care and diligence in providing his servant with safe appliances and surroundings, while at the same time the servant ordinarily assumes all risks incident to his employment, and those which are patent and within the reasonable range of his observation."

Appellant insists that the portion of the instruction italicized is erroneous, and says: "The duty of the master is to use reasonable care to furnish his servant with a safe place in which to work. His duty to furnish such a place is discharged when he has exercised reasonable care to that end."

The definition complained of has frequently been approved by this court. Haskell & Barker Car Co. v. Przezdziankowski (1908), 170 Ind. 1, 14 L. R. A. (N. S.) 972, 127 Am. St. 352, 83 N.E. 626; Cleveland, etc., R. Co. v. Perkins (1908), 171 Ind. 307, 86 N.E. 405; Pennsylvania Co. v. Whitcomb (1887), 111 Ind. 212, 12 N.E. 380. But if it should be conceded that appellant's contention is correct, the instruction taken as a whole is harmless, for in the next sentence the court defines the master's duty to be "to exercise reasonable care and diligence in providing his servant with * * * safe surroundings."

The eighth instruction given by the court was as follows: "You are instructed that if the testimony of a witness appears to be fair upon its face, is not unreasonable, and is consistent with itself, and the witness has not been in any manner impeached, then you have no right to disregard the testimony of such witness from mere caprice and without cause. It is the duty of the jury to consider the whole of the evidence, and to render a verdict in accordance with the weight of all the evidence in the case."

Counsel for appellant in their brief say that "instructions must be applicable to the issues; there must be some legal reason for the giving of an instruction. The eighth instruction states a rule for weighing the testimony of a witness in order to reconcile the evidence, etc., whereas, in fact, there was not a syllable of conflicting testimony in ...