Suelzer v. Carpenter

• Decision Date: 05 January 1915
• Docket Number: No. 22485.,22485.
• Citation: 183 Ind. 23,107 N.E. 467
• Parties: SUELZER v. CARPENTER.
• Court: Indiana Supreme Court

183 Ind. 23

107 N.E. 467

SUELZER

v.CARPENTER.

No. 22485.

Supreme Court of Indiana.

Jan. 5, 1915.

Appeal from Circuit Court, Allen County; Edward O'Rourke, Judge.

Action by William F. Carpenter against John Suelzer, Sr. Judgment for plaintiff, and defendant appeals. Affirmed.Walter Olds, of Ft. Wayne, for appellant. Wilbur G. Carpenter, Harper & Eggeman, and Thomas & Townsend, all of Ft. Wayne, for appellee.

MORRIS, J.

Action by appellee against appellant for damages for personal injuries. The complaint was originally in three paragraphs, the first of which was dismissed. The second alleges that appellant was a contractor engaged in erecting a three-story building, and in the work employed one Galmeier as foreman and appellee and others as common laborers; that steel I-beams to support the floors of the second and third stories had been placed in position; that the I-beams were 8 inches high 10 feet long and placed 5 feet apart; that it was intended to fill the space between the third-floor beams with concrete, resting on a thin, iron, archshaped mesh or reinforcement laid on the lower flanges of the I-beams; that it was designed to place the concrete so that its top would be on a level with the top of the I-beams, which would make it 8 inches deep at the I-beams, and 3 inches deep in the center, at the top of the arched mesh; that to properly and safely place the cement in place it was necessary to spread the concrete on the reinforcement to the depth of one inch only, and let it harden before completing the filling of the space; that the mesh or reinforcement would not support the weight of the green concrete if all were placed at one time; that no support, except as aforesaid, was provided for the mesh; that all of said facts were known to appellant, and that the weakness of the reinforcement was unknown to appellee; that appellee was ordered by the foreman to spread concrete one inch deep over one of the arched meshes located on the third floor, and appellee obeyed the order and commenced the work as directed by the foreman; that thereupon appellant, in person, negligently ordered appellee to at once fill the entire space between the beams with concrete to a height level with the tops thereof, without waiting for the inch layer to harden; that the latter order was obeyed by appellee, and the space was filled with wet cement, and appellee, pursuant to appellant's order given in person, was tamping the same lightly with a wooden tamper, when the concrete suddenly fell, carrying with it the supporting mesh, and thereby caused the appellee to fall to the ground floor, a distance of 35 feet, resulting in serious and permanent bodily injury to him; that no supports were provided to prevent the fall of the concrete, should the arched mesh be overloaded; that appellant knew that in placing the concrete as ordered by him in person it was likely to fall, and thereby precipitate appellee to the ground floor; that appellee was entirely unacquainted with such work, and had no knowledge of the danger in carrying it out pursuant to appellant's said order, but that nothwithstanding appellant negligently ordered him to do the work in the above-described manner; that appellee was free of any negligence which contributed to his injury.

[1] The court overruled a demurrer to the paragraph, and this ruling is assigned as error. It is contended that the paragraph is defective because it fails to aver whether, at the time of the fall, appellee was standing on an I-beam, on the concrete, or on a board across the beams, or why appellee fell as a result of the falling of the concrete. The paragraph is not defective for the reasons stated. A motion to make more specific, rather than a demurrer for want of facts, would have supplied the appropriate remedy for the indefiniteness pointed out.

[2] It is further contended that the complaint shows the appellee guilty of contributory negligence because the iron mesh support for the concrete was in full view of appellee, and, if it was not strong enough to support the load of concrete which appellant, in person, ordered placed thereon, the danger was obvious to appellee. The paragraph of complaint is long, and we have set out only its substance, but it contains direct allegations that appellee was wholly without experience in work of the character under consideration, and did not know that it was dangerous to load the supporting mesh as directed. We are of the opinion that the paragraph of complaint does not show appellee guilty of contributory negligence. Greenawalt v. Lake Shore, etc., R. Co. (1905) 165 Ind. 219, 74 N. E. 1081.

Appellant claims further that the paragraph, while alleging that no support was provided to prevent the fall of the concrete in case the iron mesh gave way, is insufficient, because it fails to allege that it was possible or practicable to construct such support. Should it be conceded that the practicability of such support is not obvious under the averments, the fact remains that the paragraph is sufficient to repel a demurrer if all allegations relating to lack of support be disregarded.

[3] The accident occurred after the taking effect of the act of March 6, 1911 (Acts 1911, p. 597). Section 2 of this statute requires flooring, staging, or protection to be laid on the second-story beams before proceeding with construction work on the third story of a three-story building. The third paragraph of complaint alleges substantially the same facts averred in the second, and, in addition, alleges that at the time of the injury no flooring, staging, or protection was laid or placed on the second-story beams, which were 5 feet apart; that it was practicable to place a temporary flooring on such beams; that it was 35 feet from the first to the third floor; that when the concrete fell it carried appellee with it between the second-story beam to the first floor, the impact with which caused appellee's injuries.

It is contended that this paragraph is defective, because, from the facts alleged, the failure to floor the second story was not the proximate cause of the injury; that the flooring would not have prevented the fall of the concrete from the third to the second story, and appellee's injuries might have been just as serious in such fall as in the one to the first floor. We cannot assent to such view of the law. The statute in question was intended to impose on those engaged in...