The Big Creek Stone Co. v. Wolf
| Decision Date | 20 September 1894 |
| Docket Number | 16,445 |
| Citation | 38 N.E. 52,138 Ind. 496 |
| Parties | The Big Creek Stone Company v. Wolf, Administratrix |
| Court | Indiana Supreme Court |
From the Monroe Circuit Court.
Judgment reversed, with directions to sustain the appellant's motion for a new trial.
F. M Finch, J. A. Finch, J. H. Louden and W. P. Rogers, for appellant.
J. H Jordan, J. R. East, O. Matthews and J. Grimsley, for appellee.
This was an action by the appellee, in the Monroe circuit court, against the appellant, to recover damages on account of the death of Chris. Wolf, the husband of the appellee. Wolf was killed the 23d day of August, 1890, in the rock quarry of the appellant, in Monroe county, by the falling of a derrick. It is alleged in the complaint that the deceased, at the time of his death, was employed at the quarry in the capacity of an engineer; that appellant kept, and used at the quarry, a derrick which was wholly insufficient for the purposes for which it was used; that its timbers were weak and old; that in constructing, erecting and putting it in place for use, it was necessary in order to secure the top attachments of the two knee braces, which were a necessary part of the machine, to have an iron key and fastening passing through the iron bolt, which was attached to the top of the mast to securely hold the braces in position, and thereby prevent the derrick from coming apart, breaking and falling when used in hoisting large stones, all of which was well known to the appellant at the time the same was erected, and, well knowing that fact, it negligently failed to put any key through said bolt; that the appellant knowing the weak and defective condition of the derrick, proceeded to use the same on the 23d day of August, 1890, in hoisting large stone, by reason of which it broke and fell, killing the said Wolf without any negligence or fault on his part; that Wolf was ignorant of the defects in the derrick, while the appellant had full knowledge of the same.
A trial of the cause resulted in a verdict and judgment for the appellee, from which the appellant appeals to this court, and assigns as error:
First. That the circuit court erred in overruling the appellant's demurrer to the complaint.
Second. That the circuit court erred in overruling the appellant's motion for a new trial.
We think the complaint states a cause of action. The rule that the master is bound to use ordinary care in furnishing the servant a safe place to work, and safe machinery and appliances is too well settled and too well known to require the citation of authorities. This complaint shows a failure on the part of the appellant to discharge that duty, and alleges that Wolf, the deceased, was ignorant of the defective condition of the derrick which caused his death.
The court did not err in overruling a demurrer to this complaint.
It is contended by the appellee, that we can not consider the other error assigned, for the reason that the evidence in the cause is not properly in the record. We can not agree with the appellee in this contention. The longhand manuscript of the official reporter is embodied in a proper bill of exception, in exact compliance with the rule established in the case of Wagoner v Wilson, 108 Ind. 210, 8 N.E. 925, and the cases...
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