Stuart v. New Albany Manuf'g Co.

• Decision Date: 05 May 1896
• Citation: 43 N.E. 961,15 Ind.App. 184
• Parties: STUART v. NEW ALBANY MANUF'G CO.
• Court: Indiana Appellate Court

15 Ind.App. 184

43 N.E. 961

STUART

v.NEW ALBANY MANUF'G CO.

Appellate Court of Indiana.

May 5, 1896.

Appeal from circuit court, Floyd county; Jacob Herter, Judge.

Action by Martin L. Stuart against the New Albany Manufacturing Company. Judgment for defendant on demurrer to complaint, and plaintiff appeals. Affirmed.

East & Miller and Ed. McCullough, for appellant. Miller, Winter & Elam, for appellee.

REINHARD, J.

The only question we are required to determine in this case is whether the court committed any error in sustaining the appellee's demurrer to the appellant's amended complaint. It is averred that the appellee was an Indiana corporation, engaged in the business of erecting stone sawmills, with the wooden framework thereto, and that on the 10th day of April, 1895, it was erecting in the city of Bloomington, Ind., a certain building and frame sawmill; that one Martin Craft was then in appellee's employment, for the purpose of managing the erection and construction of said building; that, in the construction of said building, said appellee had employed a number of hands, who, on said date, were under the direction and supervision of said Craft, as aforesaid, and among the employés of the appellee was Martin L. Stuart, the appellant, who, as such employé, was assisting in the construction of said building, in obedience to the orders and directions of said Craft; that the appellant was inexperienced in carpenter work, bridge building, and such work as was necessary to erect said building; that, in the construction of the building, it was necessary to lift large beams, 15 feet long and 10 inches square, and set them on end, in grooves or tenons cut for that purpose, to do which it was necessary to nail a heavy piece of scantling near the groove of the sill, against which to rest the lower end of the beam while elevating the other end, so as to form a brace sufficiently strong to hold the lower end of said beam in its place during the time that said beam was being raised to a perpendicular position, and set in its place in the groove; that, in raising said beam, the work was performed by other employés of the appellee than the appellant lifting the top end gradually upward, while, by direction and orders of said superintendent, the appellant was holding a crowbar in the groove in which the beam was to be placed; that, to safely elevate the beam as herein described, after lifting the top end above the heads of the employés, “tag ropes” were to be used, by attaching them to the top end of said beam, and slowly lifting the same while the appellant was fitting the lower end thereof in the groove cut for it; that, in the performance of this work, the appellee was careless and negligent, in this: that it wholly failed to nail on timbers or braces of any kind of sufficient strength to hold said beam from slipping and injuring persons in the rear of it, and further carelessly and negligently failed to attach any ropes to said beam while lifting it above the heads of employés, to steady the same, and keep it from slipping off the sill at the place of the groove, so that, in lifting said beam in such manner, the place around and about which appellant was at work was dangerous and unsafe, and said beam was in danger of slipping at the bottom, and injuring the employés, and especially the appellant, which facts were well known to appellee, or with reasonable diligence could have been known, at and prior to the time of appellant's injury hereinafter alleged; that, instead of putting a proper brace at the bottom where said beam was to be placed, the said superintendent had caused to be nailed an inch plank, with small wire nails, in such manner that the appellant could not readily nor without close inspection determine whether such brace was sufficiently strong to hold said beam or not, and that, working with his head down, closely watching the groove and crowbar, he was unable to tell or know whether the ropes had been attached to the other end of such beam or not, and that at no time in his life had he aided or assisted in placing such a beam in such a place; that, just a few minutes prior to appellant's injury, he was ordered by said superintendent to go at once to the groove, and hold said beam in with the crowbar; that said inch plank had been nailed to said sill with the edge upward; that said nails, their length and size, were hidden from appellant's view, and he had not sufficient time to either ascertain the length or size or number which fastened said plank, and had no knowledge whatever of its defective condition then or prior thereto, and relied entirely, as he was compelled to do, upon the orders and directions of said Craft, as such superintendent; that while in the line of his duty, and while obeying a direct order of said superintendent, he took hold of a crowbar, placed the same in the groove where said beam was being erected, and while so doing, and by reason of the carelessness and negligence of the appellant, said lower end of said beam suddenly twisted around past said crowbar, tore off said insufficient brace, struck the appellant on the leg, near the knee joint, and fractured and broke the bones in several places, rendering his leg entirely useless, maiming and crippling him for life, all of which injuries he says he received without any fault on his part whatever, but solely on account of the negligence of the appellee, etc.

It seems that the breach of duty here assigned is twofold, viz.: (1) The failure to have tag ropes on the top end of the timber to be raised; (2) the failure to nail a sufficient brace on the sill near the groove into which the tenon of the upright timber was to be placed.

It is a most familiar rule of law that it is the duty of the master to provide his servants with reasonably safe places and appliances in the performance of the work required of such servant. Blondin v. Quarry Co., 11 Ind. App. 395, 37 N. E. 812;Cole Bros. v. Wood, 11 Ind. App. 37, 36 N. E. 1074. It is not apparent how the operation of raising the post could have been made more secure by the nailing of one or more braces to the sill near the mortise hole or groove, so as not to interfere with the work. The pleader does not seem to attach much importance to that branch of the charge which attempts to make negligence out of the failure to attach ropes to the top end of the beam. He does not aver or show that such ropes were necessary to the proper and safe elevation of said stick of timber, or that there was any derrick or other instrument by which the ropes could have been manipulated. All that is averred in this connection is that tag ropes were to be used by attaching them to the top end of the beam, and slowly lifting the same while the plaintiff was fitting the lower end thereof in the groove cut for it. By whom these ropes “were to be used,” or to what they could have been fastened or adjusted, or where the men manipulating them could have stood, is not shown. It is also averred, as we have seen, that, “in raising said beam, the work was performed by other employés.” If we assume that it was the duty of such “other employés” to adjust the ropes, and by means thereof to lift the top of the post upward, this would seem to be the work of fellow servants, for the omission of which, if injury resulted, the master would not be held responsible.

Another rule, equally familiar as the one requiring the master to furnish his servant a safe place to work, is that, when a servant of mature years and understanding enters into an employment which is necessarily hazardous, he will be presumed to have taken all the ordinary risks incident to such service, and the fact that the service is naturally a dangerous one does not increase the master's liability, if the injury results from the natural and ordinary incidents of the undertaking. If there is a defect in the machinery or appliances that renders the work of the servant more hazardous, and that defect is open and obvious, or can, by the exercise of ordinary care, be discovered by the servant, but is disregarded, the risk becomes one of the assumed risks of the service, and liability therefor is waived. Myers v. W. C. De Pauw Co., 138 Ind. 590, 38 N. E. 37;Lime Co. v. Griffin, 139 Ind. 141, 38 N. E. 411;Railroad Co. v. Henderson (Ind. Sup.) 42 N. E. 216;Stone Co. v. Hobbs, Id. 1022; Stone Co. v. Hobbs, 11 Ind. App. 27, 38 N. E. 538;City of Lebanon v. McCoy, 12 Ind. App. 500, 40 N. E. 700. It is not averred that the appellant was taken from the work for which he was employed, and put in a more hazardous situation, by the command of the appellee or one representing it. On the other hand, it appears plainly enough that the appellant was employed to assist in the construction of the building; that is to say, in the performance of the work in which he was injured. It is true, it is stated that appellant was inexperienced in carpenter work, bridge building, and such work as was necessary to assist in such building; but it is not shown that he did not possess his proper faculties or an average degree of intelligence. We cannot say that the work assigned the appellant was more than common or ordinary labor, such as the appellant avers he was employed to perform. It required no particular experience or skill for the appellant to hold the crowbar in the groove, so as to keep the beam from slipping beyond it. This is what he says in his complaint he was directed to do. Appellant must have known that there was at least some possibility of danger from the falling of the beam. He was therefore required to exercise his faculties in observing such defects,if any there were, about the machinery or appliances, as were open to observation. He avers he was working with his head down; but it is not apparent how this would prevent him from knowing that there were no tag ropes to the top end of the beam, as he must have seen such end before it was lifted up from the...