Stimson v. Krueger
| Decision Date | 25 January 1917 |
| Docket Number | No. 9143.,9143. |
| Citation | 114 N.E. 885,63 Ind.App. 567 |
| Parties | STIMSON v. KRUEGER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Pike County; John L. Butz, Judge.
Action by Louis Krueger against Jacob V. Stimson. Judgment for plaintiff, and defendant appeals. Affirmed.R. W. Armstrong, of Huntingburg, for appellant. R. M. Milburn, M. A. Sweeney, and Bomar Traylor, all of Jasper, for appellee.
This is an appeal from a judgment in appellee's favor, in an action brought by him to recover for personal injuries alleged to have been caused by appellant's negligence.
The issues of fact were tendered by a complaint in one paragraph, and a general denial. A demurrer to the complaint for want of facts, a motion for judgment on the answers to interrogatories, and a motion for new trial, filed by appellant, were each overruled, and exceptions properly saved. Each of said rulings is assigned as error in this court, and relied on for reversal.
The grounds upon which the sufficiency of the complaint is challenged, as set out in the memorandum accompanying said demurrer, are, in substance, as follows: (1) It appears on the face of the complaint that the cause of action therein stated is predicated on the act of the Legislature, approved March 2, 1911, commonly known as the “Employers' Liability Act,” and such act has no application to the cause of action described in appellee's complaint. Section 8020a et seq., Burns 1914. (2) The complaint fails to show any duty owed by appellant to appellee which was neglected. (3) The complaint fails to show any order given by appellant to appellee that was negligently given. (4) The complaint shows on its face that the negligence, if any, responsible for the injury was the negligence of a fellow servant.
The averments of the complaint affecting said questions are, in substance, as follows: Appellant owns and operates a sawmill in Huntingburg, Dubois county, Ind., and is engaged in the purchase and sale of timber, logs and lumber, and in such mill saws and cuts lumber of all kinds. That in the operation of his said mill and business he employs more than 5 persons, to wit, 50 men. That logs purchased and delivered to appellant's said mill are brought in on wagons and trains, and are unloaded in said millyard by appellant's employés in the following manner, viz.: They are rolled off of the wagons and freight cars on a skidway. A chain is then attached to said logs, and a team hitched to the other end of the chain pulls and rolls said logs to the place and position desired, piling them one upon another, six or seven logs high. On October 9, 1912, appellee had been employed by appellant about one year, and on said day was directed by appellant's foreman and vice principal, one Harry Maley, to go into the yard and help one James Collins pile logs that were then being unloaded from cars upon said skidway, and appellee “was directed by said foreman to put chains around said logs, and when said *** chains were around said logs the said *** Collins was directed to drive up said team and pile said logs upon one another with said team,” and while appellee was thus engaged in putting a chain around one of said logs upon said skidway, which chain was attached to a double tree to which two horses of said defendant were hitched, said Collins carelessly and negligently started up said team without any warning to appellee. That appellee was at said time standing in front of said logs and between said log and the pile of logs upon which said log was to be placed, and the team was on the other side of said pile. That said log to which the chain was being attached was about five feet from said pile of logs upon which it was to be placed, and when said team was so carelessly started by Collins and said log began to move appellee immediately began to halloo to Collins to stop the team, and at the same time attempted to escape by jumping and trying to climb over said log, but was in some way caught and rolled along with said log to said pile when one arm and leg were caught between said log and said pile of logs and broken and crushed, etc. That said injuries were caused wholly by the carelessness and negligence of appellant's employé in starting up said team without any warning to appellee while he (appellee) was in said dangerous and precarious position. That when he received his injuries, appellee was in the line of his duty, obeying the orders and directions of appellant's said foreman and vice principal, to whose orders and directions appellee was obliged to conform.
[1] If we correctly interpret appellant's brief, the first three grounds of his objection to the complaint set out in his memorandum, indicated supra, are based upon a contention that the complaint shows upon its face that the orders and directions under which Collins started the team and caused the log in question to be moved by appellant were orders and directions given by appellee himself. Of course the statute under which the action was brought does not authorize recovery by the employé for injuries resulting from his own independent orders and directions whether given negligently or otherwise, and if the complaint in fact shows that appellee gave the order and direction to Collins to start the team, and...
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