The M. S. Huey Company v. Johnston
| Decision Date | 07 April 1905 |
| Docket Number | 20,438 |
| Citation | 73 N.E. 996,164 Ind. 489 |
| Parties | The M. S. Huey Company v. Johnston |
| Court | Indiana Supreme Court |
From Marion Circuit Court (10,453); Henry Clay Allen, Judge.
Action by Flora Johnston against The M. S. Huey Company. From a judgment on a verdict for plaintiff for $ 2,000, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
William A. Ketcham, Joseph W. Hutchinson and Frederick E. Matson, for appellant.
Alexander C. Ayres, Aquilla Q. Jones and John E. Hollett, for appellee.
Action by appellee against appellant to recover damages for an injury to her person. There was a verdict and judgment for appellee. The errors assigned, and not waived, draw in question the action of the court below in overruling appellant's demurrer to the second paragraph of complaint, in overruling its motion for a new trial, and in overruling its motion for judgment on answers returned by the jury to interrogatories.
Appellant's counsel urge against the second paragraph of the complaint the claim that said paragraph is drafted on the theory of attempting to state a liability on a common-law ground, and not under section nine of the act of March 2, 1899 (Acts 1899, p. 231, § 7087i Burns 1901), commonly called the factory act, and as the paragraph does not allege facts showing that the risk was not assumed, it is claimed that the pleading should be adjudged insufficient. In arguing this point counsel for appellant call attention to the charge or statement in said paragraph "that the exercise of ordinary care on the part of the defendant required it to guard the left end of the mandrel upon which the knives were located."
A complaint must be construed upon the theory which is most apparent and clearly outlined by the facts stated therein. Pittsburgh, etc., R. Co. v Sullivan (1895), 141 Ind. 83, 27 L.R.A. 840, 50 Am. St. Rep. 313, 40 N.E. 138.
The charge or statement quoted above, which counsel for appellant claim serves to stamp upon the paragraph in question the theory of a common-law action, is really nothing more than a conclusion. It is evident that we can not rely on this.
We think that the theory of the paragraph is to be found in its statements of fact and charges of negligence. An action for negligence involves a duty violated. The duty may be created by statute, and the violation of such a duty may constitute negligence per se. Davis v. Mercer Lumber Co. (1905), ante, 413; Nickey v. Steuder (1905), ante, 189; Pittsburgh, etc., R. Co. v. Lightheiser (1904), 163 Ind. 247, 71 N.E. 218, and cases cited; Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149, 58 L.R.A. 944, 64 N.E. 610.
The paragraph in question contains very full averments of the facts. It charges, among other things, that the machine was very dangerous, because the left end of the mandrel, on which knives or bits were located, was unguarded (the machine, it will be observed, operated on the saw principle); that it was practical to guard the entire mandrel, so as to make the machine perfecly safe; that appellant negligently failed to guard said end, and that plaintiff's injury was caused by "the negligence of the defendant in carelessly and negligently failing to guard or inclose the left end of the cylinder of said machine in which the mandrel and knives or bits revolved." The technical significance of an averment of negligence is well understood. Bearing in mind that the gist of the statutory action is negligence, we are clear that the paragraph, when viewed as a whole, must be regarded as having been framed on the theory of charging a cause of action under the act above mentioned.
It is next claimed that the verdict is contrary to law for certain reasons. Preliminary to a statement and consideration of the particular claims made in this connection, we deem it best to set out some portions of the evidence. Appellee was injured while acting as an operative upon a dovetailing machine, which was used for the purpose of cutting tongues and grooves in the ends of thin pieces of wood. This dovetailing machine consisted of a mandrel or shaft, on which were placed knives or saws, at regular distances. The mandrel, together with the knives upon its surface, made about 3,000 revolutions per minute. In front of the frame in which the mandrel revolved, there was a feed-board, with a guide on the right-hand side of it. The material to be dovetailed was pushed along this feed-board against the revolving knives, the operative placing his fingers on top of the board, with his thumbs behind. There was a guard placed between the mandrel and the feed-board, and it was under this guard that the pieces of wood were pushed by the operative until they would come in contact with the knives. There is evidence that one of the knives extended further to the left than the guard, and there had been no attempt to protect the left end of the mandrel. It appears from the evidence that when the knives upon such a machine become dull it is difficult to hold the material down; that in the operation of the machine in such circumstances there is a tendency suddenly to force the board back or to the left, and that the left hand of the operative is in danger of slipping forward or being thrown into the knives by the sudden movement of the board.
Appellee, who was a girl of nineteen years, without experience in the use of machinery, was taken from her regular work to operate this machine on the afternoon before she was hurt. She was instructed as to the manner of doing the work, but she was not cautioned in respect to danger to herself. She appears to have had considerable trouble with the machine that afternoon, owing to the fact that the knives were dull. The boards would jump and jerk, and she had much difficulty in holding them down; tongues upon some of the boards were broken by the knives because of their dullness. She complained to the foreman, but he merely told her to "bear down harder." Later in the day, he promised her that he would look after the machine, and the next morning he said to her that it was all right and ready for her to go to work. She was injured an hour later by a board jumping and throwing her left hand into the unguarded side of the machine. Other witnesses, who had a practical knowledge of the use of such machine, testify to facts which strongly tend to corroborate appellee's claim as to the working of such machine and the manner of her injury. One of the witnesses whom she called was asked as to the difficulty or danger of operating the machine, and he answered:
Appellant's counsel assert that if the accident can not be accounted for on the theory of contributory negligence, the mind is left to the field of conjecture and speculation as to how the accident happened. The jury followed the direct evidence, and we can not say that it was not warranted in reaching the conclusion that it did. The whole inquiry involved questions of fact, and we can not say that men of intelligence might not have reached the conclusion that the members of the jury did. If the evidence offered on behalf of appellee as to the condition of the machine was credited, the jury was clearly right in concluding that the accident happened as she claims; but, in any event, we think that this question, and also the one as to contributory negligence, was for the jury's determination. Buehner Chair Co. v. Feulner (1905), ante, 368; Davis v. Mercer Lumber Co. supra. There was no evidence that appellee was not giving attention to her work immediately before her injury. So the testimony of the foreman, which she failed to contradict, to the effect that he observed her watching him as he walked across the room, is not especially significant, even if the jury saw fit to give credence to his testimony.
It is urged that there is a variance between the second paragraph of the complaint and the proof, in that the allegation is that the appellant was negligent in failing to guard the left end of the mandrel, whereas the evidence introduced on behalf of appellee showed that the left side of the mandrel, in front of the outer row of knives, was unguarded, and that it was at that point that her hand came in contact with the knives. This is not a case of a failure of proof within the contemplation of § 396 Burns 1901, § 393 R. S. 1881.
Appellant has attempted to save the question by a mere objection to the introduction of the evidence, based on the ground of variance between the proof and the allegation. There was no claim advanced in the trial court that appellant was not ready to meet the evidence, or that it had been in anywise misled. Section 394 Burns 1901, § 391 R. S. 1881, provides Section 395 Burns 1901, § 392 R. S. 1881, provides: "Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the...
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