The Lafayette Carpet Co. v. Stafford

• Decision Date: 26 June 1900
• Docket Number: 2,915
• Citation: 57 N.E. 944,25 Ind.App. 187
• Parties: THE LAFAYETTE CARPET COMPANY v. STAFFORD, BY HIS NEXT FRIEND
• Court: Indiana Appellate Court

57 N.E. 944

25 Ind.App. 187

THE LAFAYETTE CARPET COMPANY v. STAFFORD, BY HIS NEXT FRIEND

No. 2,915

Court of Appeals of Indiana

June 26, 1900

From the Tippecanoe Superior Court.

Reversed.

C. G Stuart, W. V. Stuart, E. P. Hammond, E. P. Hammond, Jr., and D. W. Simms, for appellant.

C. E Thompson and D. E. Storms, for appellee.

OPINION

COMSTOCK, J.

On January 12, 1897, appellee, then lacking eight days of being nineteen years of age, while in the employment of appellant, lost his left arm by falling into the "whizzer", a machine used for the purpose of extracting water from yarn. His amended complaint to recover damages for said injury was in three paragraphs. Appellant demurred to each paragraph for want of facts sufficient to constitute a cause of action. The demurrer was sustained as to the second, and overruled as to the first and third paragraphs, to which rulings, as to the first and third paragraphs, appellant excepted. Appellant answered by the general denial. There was a trial by jury, and a general verdict returned in favor of appellee assessing his damages at $ 1,650. With their general verdict, the jury also returned answers to interrogatories submitted by appellant. Appellant filed a written motion for judgment in its favor on the special findings of the jury in answer to interrogatories, notwithstanding the general verdict. It also moved for judgment in its favor upon the statements in the pleadings, notwithstanding the general verdict. These motions were overruled and exceptions duly taken. The court sustained appellee's motion for judgment on the general verdict, to which ruling appellant excepted, and judgment was rendered in favor of appellee for the amount of the verdict. The foregoing adverse rulings to the appellant are assigned as error.

The whizzer into which appellee fell and received his injury is thus described in the complaint: "That said whizzer is made of a large circular iron frame which rises from floor to a height of about two feet, with a top rim about three and one-half to four inches wide; that said iron frame was about four feet in diameter; that arising from said iron rim there were three iron beams bolted onto the said rim, which rises in a circular direction, and meet about two and one-half feet above the center of the plane of the iron rim, and there forming the upper boxing for the spindle, which spindle extends down through the center of the iron frame into a lower boxing; that fastened on the bottom of said spindle and immediately above the lower boxing, and inside of said iron frame, is a circular tub, made of wood and iron the top rim of which is wood, placed thereon in sections, which fit closely together when placed thereon properly, and when said rim is in proper repair. That said top wooden rim of said tub was nearly on a level with the rim of said iron frame and formed a circle inside and closer to the center than said iron frame so that it was exposed and unprotected. That said three iron beams arising from said rim were located on the north, west and south side of said frame, form a semi-circumference, and left an open space of one-half the circumference on the east side of said whizzer."

It is averred in both paragraphs of the complaint that appellee was eighteen years of age at the time of his injury; that appellant failed to give him any instructions as to the dangerous condition of the machine; but there is no averment that appellee did not know that the machine was uncovered, nor that he did not know of the danger of operating the machine; nor that he was inexperienced; nor that appellant knew his age and inexperience. It is also averred that appellee worked in a narrow passageway in which it was difficult to see because of the dense steam, but it does not aver that appellee was ignorant of these conditions. These averments were not sufficient, therefore, to charge negligence on the part of appellant as to the whizzer being uncovered, and as to the narrow passageway and the presence of the steam. There was no absolute duty on the part of the appellant to cover the whizzer. Guedelhofer v. Ernsting, 23 Ind.App. 188, 55 N.E. 113, and authorities there cited. See, also, Stephenson v. Duncan (Wis.), 73 Wis. 404, 41 N.W. 337; Naylor v. Chicago, etc., R. Co., 53 Wis. 661, 11 N.W. 24; Hobbs v. Stauer, 62 Wis. 108, 22 N.W. 153; Foley v. Machine Works, 149 Mass. 294, 21 N.E. 304, 4 L. R. A. 51; Gilbert v. Guild, 144 Mass. 601, 12 N.E. 368; Goodnow v. Emery Mills, 146 Mass. 261, 15 N.E. 576; Murphy v. Rubber Co., 159 Mass. 266, 34 N.E. 268; Hale v. Cheney, 159 Mass. 268, 34 N.E. 255; Stuart v. West End St. R. Co., 163 Mass. 391, 40 N.E. 180; Downey v. Sawyer, 157 Mass. 418, 32 N.E. 654; Schroeder v. Michigan, etc., Co., 56 Mich. 132, 22 N.W. 220; Coombs v. N. B. Cordage Co., 102 Mass. 572, Sjogren v. Hall, 53 Mich. 274, 18 N.W. 812; Palmer v. Harrison, 57 Mich. 182, 23 N.W. 624; Young v. Burlington, etc., Co., 79 Iowa 415, 44 N.W. 693; Lake Shore, etc., R. Co. v. McCormick, 74 Ind. 440; Larson v. Knapp, etc., Co., 98 Wis. 178, 73 N.W. 992; Mackin v. Alaska, etc., Co., 100 Mich. 276, 58 N.W. 999.

Counsel for appellee say in their able brief that the statute required appellant to cover its machinery, quoting § 7087h, Burns Supp. 1897, (Acts 1897, p. 101, § 8). This act, however, even if applicable to the case before us, did not go into effect until after appellee received his injury.

The objections to the first and third paragraphs of the amended complaint are: (1) That they are insufficient for failing to aver directly, or stating facts showing, that appellee's injuries occurred through the negligence of the appellant, and in failing to show that the alleged defects in the rim or spindle were the proximate cause of such injuries; (2) that they are insufficient for want of averments, or statement of facts, showing that appellee's injuries were received without fault or negligence upon his part.

The negligence charged against appellant in the first paragraph of complaint is that "defendant neglected its duty and failed to keep said machine in repair", especially that part known as the rim of the tub; that said rim was made of wood and was out of repair in this, that the sections were loose and the joints of the same did not come close together, and that said rim was worn rough so that parts (commonly called splints or silvers) of the top and edge projected slightly above the surface of the same. "In consequence of the rim of said tub being out of repair, the yarn which he was carrying on his left arm was caught by the rough part of said rim," etc.

There is no averment that the want of repair was the same before stated; nor that any act or omission of appellant was the cause of the yarn catching in the rim. The fact that the rim was out of repair and caused the yarn to catch may have been a different defect from that with which appellant is charged with being negligent. Presumptions will not be indulged in favor of the pleader.

The averment of negligence in the third paragraph follows the description of the defects in the spindle, and is as follows: "Defendant neglected its duty and failed to place any covering or netting over said rear of said whizzer and spindle and failed to keep said machine in repair, especially that part of said machine known as the spindle." The want of repair of the spindle is thus described: "Said spindle was made of iron and the same was out of repair in this: That the part below the top boxing which held the top of said spindle was rough and covered with oil and dust." It is claimed by counsel for appellant that the foregoing averment does not charge any act of negligence causing appellee's injury. It charges that appellant failed to keep or place any covering over the rear of the whizzer and spindle and especially failed to keep the machine in repair, particularly the spindle, but does not aver that appellee's injury was caused by appellant's negligence. Nor does it appear from the facts pleaded that appellant's negligence caused appellee's injury.

In Pennsylvania Co. v. Gallentine, 77 Ind. 322, 324, it was averred: "That the said defendant cut down the grass and weeds growing on the track and grounds of said railroad at said point, and permitted large quantities of other inflammable material to accumulate on said road and grounds, at said point, and negligently permitted said grass, weeds and other inflammable material to remain on the track and grounds of said road as aforesaid, until they become very dry, when on the -- day of , 1872, they were set on fire by the passing trains, negligently run and operated on said road by the defendants, and the fire from said burning grass, weeds and other inflammable material, was communicated to said wood, and it was then and there burned. Wherefore the plaintiff was damaged," etc. The complaint was held bad, the court, at page 325, saying: "It avers 'that the wood was set on fire by the passing trains, negligently run and operated on said road by the defendant, and burned;' but it does not aver that the negligence had anything to do with the setting on fire and the burning of the wood, or that the injury was caused by, or resulted from, the negligence of the defendant."

In Corporation of Bluffton v. Mathews, 92 Ind 213, being an action against the town for an injury received by the plaintiff in falling into an excavation, the complaint charged: "That said incorporated town of Bluffton and said Morgan suffered and permitted said two excavations in said sidewalk to be made, and negligently, wrongfully and unjustly suffered and permitted the same to remain open, and the passage of said sidewalk to be obstructed and rendered dangerous to persons passing along said sidewalk along said...