The Clear Creek Stone Co. v. Dearmin
| Decision Date | 27 February 1903 |
| Docket Number | 19,979 |
| Citation | 66 N.E. 609,160 Ind. 162 |
| Parties | The Clear Creek Stone Company v. Dearmin |
| Court | Indiana Supreme Court |
From Monroe Circuit Court; J. C. Robinson, Special Judge.
Action by Lawson E. Dearmin, by next friend, against the Clear Creek Stone Company for personal injuries. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337j Burns 1901.
Affirmed.
H. C Duncan and I. C. Batman, for appellant.
J. R East and R. H. East, for appellee.
Action by the appellee, a minor, by his next friend, against the appellant for damages for a personal injury. Demurrers to the several paragraphs of the complaint were overruled, and motions for judgment for the appellant on the answers of the jury to questions of fact on the issues, and for a new trial, were denied. These rulings are assigned for error.
No objection to the first paragraph of the complaint is pointed out, and any error in the ruling on the demurrer to it is waived by the failure of counsel to discuss it.
The appellee was employed by the appellant at its stone quarry, and, while in the performance of his duties, he was injured by the fall of a heavy wire rope which extended from the top of a derrick to the end of a boom-pole used for lifting and moving stone and other heavy articles.
It appears from the several paragraphs of the complaint that, at the time of the injury to the appellee, the appellant, as a part of the machinery used in its stone quarry, owned and employed a large steam derrick, with a mast pole fifty feet or more in height, held in a perpendicular position by guy-ropes, the lower end of which pole rested and revolved in a socket. Near the lower end of this mast another long piece of timber was attached to it by a large hinge. To the free end of the latter a steel wire rope was fastened, which extended to a pulley at the top of the mast, and ran from the pulley to a cast-iron drum, three feet long and eighteen inches in diameter, in the power-house of the appellant, some seventy-five yards distant. The wire rope was fastened to the drum by a metal clamp placed over the end of the rope and pressed down by a nut and screw. The drum was operated or moved by steam-power, and, by winding or unwinding the rope, raised or lowered the piece of timber which worked upon the hinge, and which was known as the boom-pole.
It is alleged in the second, third, and fourth paragraphs of the complaint that the wire rope was old and unfit for use; that it had been spliced the day before the accident with a smaller rope; that the smaller rope was attached to the iron drum; that the rope was too short; that the clamp which fastened the rope to the iron drum was defective, because it could not be screwed down tight upon the rope; and that while it was necessary that the wire rope should be long enough to leave several wraps of the rope around the iron drum when the boom-pole was lowered to the ground, yet in fact it was too short to do so. It is charged that the appellant was negligent in failing to tighten the clamp upon the rope, and in permitting the rope to slip off the iron drum; in permitting the premises in the vicinity of the said derrick to become dangerous, through its failure properly to fasten the wire rope, and to keep the same fastened; and in failing to warn the appellee of the dangerous condition of the derrick, although the appellant knew what was necessary to make it safe. It is averred that by reason of the defects in the steam derrick and its tackle, which have been mentioned, all of which were known to the appellant, but not to the appellee, while the derrick was being used to lower a load or box of coal for the steam-engines in the quarry, the wire rope suddenly fell from the mast and injured the appellee, who was then and there engaged in and about his work. It is further alleged, as the conclusion of the statement of the facts constituting the appellee's cause of action, that all of the injuries sustained by him "were received by reason of the carelessness and negligence of defendant as herein set forth."
It is objected on behalf of the appellant that its negligence, as described in the complaint, is not shown by proper averments to have been the proximate cause of the injury to the appellee. But, as we have seen, all the defects in the wire rope and its fastenings were charged to the negligence of the appellant. The sudden fall of the rope is alleged to have resulted from these defects, and by its fall the appellee, who was passing under it, is said to have been injured. The connection between the negligent conduct of the appellant in permitting the defects in the wire rope and its fastenings to exist, and the sudden fall of the rope upon the appellee, who was then and there lawfully engaged in his work for the appellant, is very plainly stated. The sequence between the negligence of the appellant in failing to make the rope secure and the injury sustained by the appellee was natural and unbroken, and that negligence clearly appears to have been the proximate and sole cause of the accident and injury.
The further point is made that, while it is averred that at the time of the accident the boom-pole was being lowered to the ground, there is no allegation that this was a proper use of the boom, or that the appellant knew that the rope was too short for this particular purpose. There is nothing in the complaint which indicates that the derrick and boom were used in an improper or extraordinary manner, or which would authorize an inference that such was the case. If there had been any obscurity in the pleading in this respect, it should have been pointed out by an appropriate motion. However, we fail to perceive either obscurity or ambiguity in this part of the complaint, and are of the opinion that it was sufficiently shown by its averments that the derrick and boom-pole were being used for an ordinary purpose, and in the usual manner.
Upon the return of a general verdict against it, the appellant moved the court to disregard the verdict and to render judgment in its favor upon the answers of the jury to the questions of fact submitted to them. It is settled by many decisions of this court...
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