Standard Steel Car Co. v. Martinecz
| Decision Date | 23 June 1916 |
| Docket Number | No. 9026.,9026. |
| Citation | 66 Ind.App. 672,113 N.E. 244 |
| Parties | STANDARD STEEL CAR CO. v. MARTINECZ. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Lake County; Johannes Kopelke, Judge.
Action by Mike Martinecz against the Standard Steel Car Company. From a judgment for plaintiff, defendant appeals. Affirmed.Peter Crumpacker and F. C. Crumpacker, both of Hammond, for appellant. George B. Sheerer and Walter J. Lotz, both of Hammond, for appellee.
Appellee was in appellant's employ December 6, 1912, working as a fitter in the car erection department of appellant's plant at Hammond, Ind. His employment commenced in May, 1912. The complaint discloses that appellant had equipped such department with large emery stones, which were kept constantly revolving at a high rate of speed during working hours. The stones were designed to be and were used by the employés in sharpening tools as needed and in shaping car parts when required to make them fit accurately. Each stone was equipped with a metallic rest, bolted to the frame work of the stone, and used to support the tool or car part while being ground. December 6, 1912, appellee was shaping a small piece of steel plate by grinding it on one of the stones, preparatory to using it in wedging up a metallic post of a car which he was erecting. While doing so, his left hand came in contact with the rapidly revolving stone, and as a consequence two fingers were severed, and he was otherwise injured. He brought this action to recover for such injuries. A trial resulted in a verdict for $1,500, in his favor, on which judgment was rendered.
The wrongful conduct charged in the complaint is in substance that appellant had negligently permitted the rest with which the stone was equipped to become loose, so that, when the stone was being used, the rest was likely to swing downward and forward, and thus bring the hand of the operator in contact with the stone; and also that appellant had negligently permitted the stone to become irregular in shape, and had permitted large, hard lumps to be formed upon its grinding surface, and that as a consequence, such irregularities and lumps were liable to catch any article being ground, and thus jerk the operator's hand into contact with the stone. It is alleged in substance that the negligence charged was the proximate cause of the injury suffered. The complaint is not challenged. The parties agree that it is predicated upon the act of 1911 (Acts 1911, p. 145; section 8020a et seq., Burns 1914).
[1] Appellant urges the question of the invalidity of such act. Its constitutionality has been determined by the Supreme Court. Vandalia R. Co. v. Stillwell, 181 Ind. 267, 104 N. E. 289;Terre Haute Co. v. Weddle, 183 Ind. 305, 108 N. E. 225;Kingan Co. v. Clements, 110 N. E. 66;Kokomo Brass Works v. Doran, 105 N. E. 167. The case last cited has received the approval of the Supreme Court by the denial of a transfer.
[2] Appellant directs points to the insufficiency of the evidence in but two respects: (1) That it does not appear that the negligence charged was the proximate cause of the injury suffered; (2) that the evidence establishes affirmatively that appellant did not have actual knowledge of the alleged defects and that it does not appear that they were in existence a sufficient time prior to the injury to enable appellant to know of their existence, and to repair them or discontinue the use of the defective equipment. On the question of constructive knowledge suggested by the second point, section 3 of the act of 1911 (section 8020c, Burns 1914) places the burden of proof on the employer. It follows that in order that the evidence may be held to be insufficient in that respect, it must appear affirmatively therefrom that appellant was not chargeable with such knowledge in time to repair, etc.
[3] Appellant, by urging the insufficiency of the evidence only in the respects indicated, impliedly concedes its sufficiency in all other features and as to all other elements. This concession includes the existence of materially defective equipment as alleged, and consequently the existence of actionable negligence, except as such element is involved in the points urged. It also includes the absence of contributory fault on the part of appellee, and also the nonassumption of risk by him, except as the latter element is also involved in the points urged against the sufficiency of the evidence. Appellant frankly recognizes the well-established principle that the question of what was the proximate cause of a particular injury is usually one of fact for the jury to determine under proper instructions, and that it becomes a question of law for the court only where the essential facts bearing upon it are undisputed, and where from such facts but one conclusion may reasonably be drawn.
The first point urged against the sufficiency of the evidence becomes material for the reason that, unless it appears that the negligence alleged and proven was the proximate cause of appellee's injury, such negligence is not actionable.
Appellant does not specifically direct our attention to the importance of the second point urged against the sufficiency of the evidence, in the consideration of any question involved here. It might have some bearing on the issue of negligence, but appellant does not so apply it, nor does appellant specifically contend that the evidence is insufficient to establish negligence as charged. The language in which such point is framed indicates, however, in view of certain provisions of the act of 1911, that appellant intends to direct such point to the issue of assumed risk. Such provisions are found in section 3 of the act (section 8020c, Burns 1914), and are as follows:
“In any action brought against any employer under the provisions of this act to recover damages for injuries to or the death of any of his, its, or their employés, such employé shall not be held to have assumed the risk of any defect in the place of work furnished to such employé, or in the tool, implement, or appliance furnished him by such employer, where such defect was, prior to such injury, known to such employer or by the exercise of ordinary care might have been known to him in time to have repaired the same, or to have discontinued the use of such defective working place, tool, implement, or appliance”
-and that the burden of proving such want of knowledge shall be on the defendant.
[4] We proceed to consider the scope of the second point in its relation both to the issue of assumed risk and the issue of negligence. Assuming, for purposes of the present discussion, that such point is well taken, and that it affirmatively appears from the evidence that appellant did not have knowledge, actual or constructive, of the defects complained of for a sufficient length of time prior to the injury to have enabled repairs to be made or the use of the defective appliance to be discontinued in the exercise of ordinary care, still, under such state of facts alone, the application of the principle of assumed risk would not defeat appellee's right to recover. The application of such principle would not defeat his right to recover at common law, if it appeared also from the evidence that appellee did not have knowledge, actual or constructive, of the defects complained of, or that he did not know or appreciate the hazards thereof. Wright v. Chicago, etc., Co., 160 Ind. 583, 66 N. E. 454.
[5] Appellant directing no point to the contrary, it should be taken as conceded, if essential to a determination of this cause, that the evidence discloses affirmatively that appellee did not have such knowledge, and that he did not understand or appreciate such hazard. It follows that appellee must fail as to such second point, even were the issue of assumed risk involved in this action and governed by common-law principles.
[6] However, by the second section of such act (section 8020b, Burns 1914), it is provided that:
“In actions brought against any employer under the provisions of this act for the injury or death of any employé, it shall not be a defense that the dangers or hazards, inherent or apparent in the employment in which such injured employé was engaged, contributed to such injury.”
The fact that the dangers or hazards were apparent could have no greater effect in its relation to appellee than to charge him with knowledge thereof. It thus appears that, assuming that it affirmatively appears from the evidence that appellant did not have knowledge as contended in the point under discussion and that appellee did have knowledge as indicated, still by the express provisions of the statute his right to recover could not be defeated by an appeal to the doctrine of assumed risks. Vandalia Co. v. Stillwell, supra, 181 Ind. 271, 104 N. E. 289. It thus appears that the point under consideration, if conceded to be true, could not avail appellant anything, if directed solely to the issue of assumed risk. We do not consider the statutory provision in its relation to the issue of contributory negligence, since appellant directs no point to the proposition that the evidence establishes that appellee was guilty of contributory negligence.
[7] Although, as we have indicated, appellant does not specifically contend that the evidence is insufficient to establish the negligence charged, yet, as the point under discussionmay bear some relation to such issue, we proceed to its further consideration. Negligence is the gist of all actions maintainable under the act of 1911. Vandalia, etc., Co. v. Stillwell, supra. Under the provisions of section 2 of such act (section 8020b, Burns 1914), as above quoted, while, in case of inherent or apparent dangers or hazards, the principle of assumed risk may not be applied to defeat a recovery, the absence of negligence on the part of defendant would have such effect. That is, where the inherent or apparent dangers involved in...
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