Standard Pottery Company v. Moudy

• Decision Date: 25 January 1905
• Docket Number: 4,887
• Citation: 73 N.E. 188,35 Ind.App. 427
• Parties: STANDARD POTTERY COMPANY v. MOUDY
• Court: Indiana Appellate Court

73 N.E. 188

35 Ind.App. 427

STANDARD POTTERY COMPANY v. MOUDY

No. 4,887

Court of Appeals of Indiana

January 25, 1905

Motion to modify mandate denied March 29, 1905.

Transfer denied May 12, 1905.

From Clay Circuit Court; Presley O. Colliver, Judge.

Action by Corwin E. Moudy against the Standard Pottery Company. From a judgment on a verdict for plaintiff for $ 2,000, defendant appeals. (On petition to transfer to Supreme Court. Denied. 164 Ind. 656.).

Reversed.

Elmer E. Stevenson and Edward H. Knight, for appellant.

Coffey & McGregor, for appellee.

OPINION

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 first employed 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 plaintiff in the sum of $ 2,000. With the verdict, answers to interrogatories were returned.

1. 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 corporation duly organized 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 crocks 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 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 employe 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; 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, thereby shortening the rods and drawing 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 John Ross, a co-employe, under the direction of said Carlyle as aforesaid; that after they were so adjusted 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 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 said belt and flew forward with great force, striking plaintiff upon his arm, seriously and permanently disabling him; that said injury was due solely (1) to the negligence and carelessness of the defendant in taking him from his regular line of employment, (2) to defendant's negligence in directing him to perform said work, and (3) to 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 was 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 could not be fastened upon the belt so as to prevent their slipping when applying force sufficient to bring the broken ends of the belt together; that said appliance was old, worn smooth, 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 employes.

It further avers that plaintiff 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 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 defendant's negligence consisted in providing implements wholly unsuited and unfit to be used, and in assigning plaintiff to a place made unsafe by reason of those defective appliances, and in failing to adjust the defective clamps or guard against slipping in their defective condition, and in negligently ordering plaintiff to perform the act which resulted in his injury; that Carlyle, the foreman negligently directed plaintiff and one Ross, a co-employe, to use those defective appliances, and to stand between the blocks and tighten the rod by the use of a wrench, instead of standing at the end and tightening the nuts on the rod, and "negligently directed plaintiff still further to tighten said rod when the same was on a very great strain;" that plaintiff, having no knowledge of the mode of using clamps, "relied upon the directions of said Carlyle, whose orders he was bound to obey"; that, while in his effort to carry out said Carlyle's order still further to tighten the rod, the clamp slipped and struck plaintiff on his arm. The court did not err in holding each...