The Joseph E. Lay Co. v. Mendenhall

• Decision Date: 28 October 1913
• Docket Number: 8,080
• Citation: 102 N.E. 974,54 Ind.App. 342
• Parties: THE JOSEPH E. LAY COMPANY v. MENDENHALL
• Court: Indiana Appellate Court

102 N.E. 974

54 Ind.App. 342

THE JOSEPH E. LAY COMPANY v. MENDENHALL

No. 8,080

Court of Appeals of Indiana

October 28, 1913

From Randolph Circuit Court; James S. Engle, Judge.

Action by James F. Mendenhall against The Joseph E. Lay Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

J. W Newton, for appellant.

F. H Snyder and W. E. Smith, for appellee.

OPINION

FELT, J.

This is a suit for damages for personal injuries brought by the appellee against the appellant. The complaint was in one paragraph and was answered by general denial. The appellant assigns as error that: (1) the complaint does not state facts sufficient to constitute a cause of action; (2) error in overruling the motion for judgment on the answers to the interrogatories notwithstanding the general verdict; (3) overruling appellant's motion for a new trial.

Appellee contends that appellant has not complied with the rules of this court in the preparation of its briefs. While the briefs are not in commendable form, they evidence a good faith effort to comply with the rules and we shall therefore consider such questions as have been presented and discussed in the briefs.

The complaint is attacked after verdict and will be held sufficient if it does not wholly omit some essential averments, and states facts sufficient to bar another suit for the same cause of action. The complaint alleges in substance that appellee was employed by appellant in a manufacturing establishment and a part of his duties were to operate a planer and to oversee and attend to the operation thereof and keep the machine in running order; that on June 10, 1910, while so employed, and while said machine was being operated by an assistant, he was informed by such helper that a journal or box on said machine was hot; that in pursuance of his said employment and while acting in the line of his duty, he reached across said planer toward said journal to ascertain the condition of the same and whether it was hot enough to interfere with the operation of the machine; that while so doing the suction caused by the rapid motion of the knives of the planer drew his right hand against the end of the knives and severely injured it without any fault or negligence on his part; that his said injuries were caused by the carelessness and negligence of the defendant in leaving said planer and the knives thereof unguarded, and in failing to provide him with a safe place in which to work; that by § 8029 Burns 1908, Acts 1899 p. 231, § 9, it was the duty of the defendant to cover and otherwise guard said planer and the knives thereof and defendant carelessly and negligently failed to guard the same and suffered said knives on said planer to remain unguarded; that it was practicable to guard said planer without interfering with the practical use thereof; that plaintiff's said injuries were caused by and on account of the negligence of defendant in failing to place and maintain a guard over the knives of said planer. The complaint is clearly good as against the attack made on it here and would doubtless have withstood an attack by demurrer. We can not say as a matter of law that the averments show appellee guilty of negligence contributing to his injury. American Car, etc., Co. v. Vance (1912), 177 Ind. 78, 97 N.E. 327.

It is contended that the answers to the interrogatories are in irreconcilable conflict with the general verdict. The answers to the interrogatories in substance show that the planer on which appellee was injured had on it a curved cast iron guard which was located between the place where the person feeding the machine stood and the knives, but that the knives were not properly guarded; that plaintiff had been employed by defendant to work at the planer upon which he was injured and was also employed to do other work in and about the factory that it was a part of his duty, when said planer was out of order to fix and adjust it; that he was by the defendant ordered to go from the work in which he was engaged to the planer upon which he was injured, and was by it directed to take hold of the boxes which he had been informed were hot; that he knew the danger incident to such examination and knew and understood the danger of operating the machine; that he understood the construction of said planer and had worked upon it at different intervals covering a period of three years before his injury; that immediately before his injury plaintiff was not operating said planer but was standing in front of the...