Standard Pottery Co. v. Moudy

• Decision Date: 25 January 1905
• Docket Number: No. 4,887.,4,887.
• Citation: 35 Ind.App. 427,73 N.E. 188
• Parties: STANDARD POTTERY CO. v. MOUDY.
• Court: Indiana Appellate Court

35 Ind.App. 427

73 N.E. 188

STANDARD POTTERY CO.

v.MOUDY.

No. 4,887.^*

Appellate Court of Indiana, Division No. 2.

Jan. 25, 1905.

Appeal from Circuit Court, Clay County; Presley O. Colliver, Judge.

Action by Corwin E. Moudy against Standard Pottery Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Elmer E. Stevenson and Edward H. Knight, for appellant. Coffey & McGregor, for appellee.

COMSTOCK, C. J.

Appellee brought this action against appellant to recover damages for injuries received on June 21, 1901, as a result of appellant's alleged negligence.

Appellee was employed first by the Standard Pottery Company, appellant herein, in May, 1900, to perform general work about the factory; subsequently, about six months prior to his injury, he was assigned to work in glazing clay ware; and about five months prior to his injury was assigned to a jigger wheel, a machine used for turning out jars and other clay ware.

The complaint is in two paragraphs. The defendant demurred to each for want of facts sufficient to constitute a cause of action. The demurrers were overruled, and the cause put at issue by general denial. A trial resulted in a verdict and judgment for appellee in the sum of $2,000. With the verdict, answers to interrogatories were returned.

The errors assigned challenge the sufficiency of each paragraph of complaint, the action of the court in overruling appellant's motion for judgment on the answers to interrogatories, and in overruling appellant's motion for a new trial.

The first paragraph avers that the defendant was a duly organized corporation under the laws of the state of Indiana, and on the 21st day of June, 1901, owned and operated a manufacturing plant wherein certain pottery jars and other clay products were manufactured; that plaintiff was then in the employ of said defendant, working in said establishment in the capacity of a jollyman or jigger, whose duty it was to operate a piece of machinery in the manufacturing of milk pans and other clay products; that he was employed for no other or different purpose, and was by said defendant assigned to said position, and said position was nonhazardous; that on said day one Charles Carlyle, who was the foreman and superintendent of said establishment, directed plaintiff to quit his said employment where he was then engaged, and to assist another employé of said defendant in drawing together and adjusting a large belt which was being operated upon other machinery in said establishment, and which had prior thereto been broken and severed; that said work of repairing said belt and adjusting the same as he was directed to do formed no part of plaintiff's duties under his employment, but was independent thereof, and that said work of repairing said belt, together with the appliances to be used, was a hazardous and dangerous employment; that, in obedience to the direction of said foreman, plaintiff undertook to assist in uniting the broken ends of said belt; that it was the duty of the defendant to furnish reasonably safe and suitable tools and appliances with which to perform such work; that it neglected and failed to perform said duty in this, that it negligently furnished for such purpose defective and improper implements and appliances; that the mode adopted by defendant for drawing the ends of the broken belt together was by means of certain blocks or pieces of timber about six inches in thickness and about four inches in width and two feet in length; that one piece of timber was placed under the lower side of one end of the belt and the other piece was placed on top of the other side, and said pieces of timber were then securely fastened together, with the belt between, by means of iron bolts passing through both pieces of timber at either end, and upon the ends of the bolts were adjusted iron burrs or nuts, which by means of a wrench were tightened thereby, causing said timbers to fasten upon and clamp the portion of the belt between said timbers; that a block similarly constructed was in like manner placed upon and adjusted to the other end of the broken belt; that upon either side of the belt extended iron rods about three feet in length and about one inch in diameter, and passing through the ends of said blocks of timber, and having attached at the ends of the rods iron burrs and nuts; that, by means of a wrench being applied to said rods and causing them to turn, the rods would pass into said burrs or nuts at the ends adjusted as aforesaid, and thereby shorten the rods and draw the blocks with the ends of the belt clamped as aforesaid closer together, and by this process the ends of the belt were brought together so as to be held in position until the ends were united by lacing; that said appliances were adjusted to said broken belt as above set out by plaintiff and one John Ross, a co-employé under the direction of said Carlyle as aforesaid; that after they were so adjusted the said Ross proceeded to tighten the rod on one side of the belt, and plaintiff on the other; that, while so engaged in tightening the rod and drawing the said ends of the belt together as directed by said Carlyle, suddenly and without any warning the blocks, being upon a very great strain, let loose of the said belt and flew forward with great force, striking plaintiff upon his arm, seriously and permanently disabling him; that said injury was due solely, first, to the negligence and carelessness of the defendant in taking him from his regular line of employment, second, negligence in directing him to perform said work, and, third, carelessness of the defendant in not providing suitable and proper blocks and appliances for the performance of such work; that the same were defective in construction, and were not of an approved pattern in this, that they were made of plain surfaced timber, so that the parts which came in contact with and were intended to clamp the belt were smooth, having no grooves therein or other means provided by which to cause said blocks to seize upon and hold the belt from slipping through the blocks which should have been provided; that said apparatus had been in use in and about said establishment for more than three years, and had often been used, and by reason thereof had worn very smooth on the face of the block which was applied to the belt, and on account of the worn and smooth condition of the blocks they cannot be fastened upon the belt so as to prevent them slipping when applying force sufficient to bring the broken ends of the belt together; that said appliance was old, worn smooth, and was defective in material and construction, and was wholly unfit to be used for the purpose for which it was intended, all of which facts were well known to the defendant, or might have been known by the exercise of reasonable diligence and inspection; that said defendant, with said knowledge as to the unworthy condition of said blocks and appliances as aforesaid, had carelessly and negligently permitted the same to be used without warning plaintiff of their defective condition or of the danger attending their use, and carelessly failed to provide any means to prevent the same from slipping when in use, as it could and should have done for the safety of its employés. It further avers that he was inexperienced in the use of such appliances, and had no knowledge as to the proper mode of constructing the same so as to render them efficient and safe; that he had no knowledge of the imperfect construction of the said blocks, nor of their defective condition, nor of the danger attending their use in such condition, but, presuming that they were safe to be used, and knowing nothing to the contrary, he proceeded in the exercise of due care to carry out the instructions of said foreman, when he was injured as aforesaid, without any fault or negligence on his part contributing thereto.

The second paragraph differs in the following particulars: That appellant's negligence consisted in providing implements wholly unsuited and unfit to be used, and in assigning appellee to a place made unsafe by reason of those defective appliances, and in failing to adjust the defective clamps or guard against them slipping in their defective condition, and in negligently ordering appellee to perform the act which resulted in his injury;...