The Pennsylvania Co. v. Witte
| Decision Date | 26 March 1896 |
| Docket Number | 1,707 |
| Citation | 43 N.E. 319,15 Ind.App. 583 |
| Parties | THE PENNSYLVANIA CO. v. WITTE |
| Court | Indiana Appellate Court |
Zollars & Worden, for appellant.
L. M Ninde, for appellee.
Appellee was injured while working in appellant's shops. For this he recovered judgment for damages in the court below. Demurrers to the two paragraphs of complaint were overruled, with exceptions, and judgment rendered over appellant's motion for a new trial.
One paragraph of complaint alleges that appellee was employed to oil the shafting and machinery in appellant's shops, and to shovel coal; that while engaged in oiling a certain loose pulley, a belt slipped from a fast pulley along side it and set the loose pulley in motion, whereby his hand, which held the loose pulley was thrown into certain cogwheels; that this was caused by the dangerous defects in, and insufficiency of the shifter, by which the belt was shifted from one pulley to the other, and by which it should have been kept upon the pulley on which it had been placed.
There are also general averments of knowledge upon the part of the appellant, and want of knowledge of the dangerous defects and due care upon the part of appellee, with proper averments of the negligence of appellant in so maintaining its machinery in such dangerous condition.
It is well settled, that it is the duty of the master to exercise reasonable care to furnish reasonably safe places in which, and appliances with which, the servants are to work, and to exercise the same care to keep them in such condition. It is also true, that the servant assumes all the risks ordinarily incident to the work in which he engages. But the servant does not assume the hazards occasioned by the master's negligent breach of his duty, unless with knowledge thereof he continues in the master's service, when, as a general rule (subject, however, to some exceptions, with which we have not now to deal) the servant is, in Indiana, held to assume these added hazards. Rogers v. Leyden, 127 Ind. 50, 26 N.E. 210; Louisville, etc., R. W. Co. v. Quinn, 14 Ind.App. 554, 43 N.E. 240, Evansville, etc., R. R. Co. v. Holcomb, 9 Ind.App. 198, 36 N.E. 39; Blondin v. Oolitic, etc., Co., 11 Ind.App. 395; Lynch v. Pittsburg, etc., R. W. Co., 8 Ind.App. 516; Pennsylvania Co. v. Burgett, 7 Ind.App. 338, 33 N.E. 914.
It must also be regarded as established in this State that such knowledge as operates as an assumption of the risk, is not to be regarded as included under the head of contributory negligence, but is an independent factor or element, the existence of which must be specifically denied, as the knowledge of the master must be specifically averred. Kentucky, etc., Bridge Co. v. Eastman, 7 Ind.App. 514, 34 N.E. 835; Pittsburgh, etc., R. W. Co. v. Woodward, 9 Ind.App. 169, 36 N.E. 442; Evansville, etc., R. W. Co. v. Duel, 134 Ind. 156, 33 N.E. 355; New Kentucky Coal Co. v. Albani, 12 Ind.App. 497, 40 N.E. 702; Louisville, etc., R. W. Co. v. Corps, 124 Ind. 427, 24 N.E. 1046.
Although the servant may not have actual knowledge of the existence of the dangerous defect, if the defect is open and obvious, so that in the exercise of reasonable care in the discharge of his duties he ought to have known it, then he will be deemed to have known that which he should have learned. Muncie Pulp Co. v. Jones, 11 Ind.App. 110, 38 N.E. 547; Lynch v. Chicago, etc., R. W. Co., supra.
The general averments of knowledge and want of knowledge, however, include both actual and imputed knowledge. Evansville, etc., R. W. Co. v. Duel, supra; Louisville, etc., R. W. Co. v. Miller, 141 Ind. 533, 37 N.E. 343; Heltonville Mfg. Co. v. Fields, 138 Ind. 58, 36 N.E. 529; Lake Erie, etc., R. W. Co. v. McHenry, 10 Ind.App. 525, 37 N.E. 186; Louisville, etc., R. W. Co. v. Breedlove, 10 Ind.App. 657, 38 N.E. 357.
Counsel, in their brief, state: In this statement, we are of opinion counsel are sustained by the fact; but we are not, therefore, permitted to supplement the allegations of the complaint, and make them more specific by resort to the description of the machinery's working, set forth by counsel in their brief, in order to overthrow the general averments of the complaint. In actions such as this, the general averments of negligence, or want of contributory negligence, or knowledge of dangerous defects, will be deemed sufficient as against demurrers, unless the facts specifically stated clearly show the contrary. Evansville, etc., R. W. Co. v. Malott, 13 Ind.App. 289, 41 N.E. 549; Eureka Bl'k Coal Co. v. Bridgewater, 13 Ind.App. 333, 40 N.E. 1101.
In view of the lack of particularity in the statements concerning the mode of construction of this shifter, and especially in view of the direct averment that it was no part of the appellee's duty "to work with or operate said shifter, or any of its fastenings," nor to inspect or repair the same, we cannot say that the general averment of want of knowledge appears conclusively to be untrue.
The second paragraph contains largely the same matters as the first, with additional charges of other acts of negligence, such as failure to put guards over the cogwheels, and suffering the "rattler and the line shafting, its bearings, boxings, and fastenings, and the said cogwheels, their shaftings, boxings, bearings, and the cogs on said wheels to be and become and remain worn out, out of order, loose, worthless, and dangerous" for use by the appellee and others, and also in suffering each and every part of said machinery "to be and become and remain worn out, loose, out of order, and dangerous." It is further averred that the accident happened "because and on account of each and every part of said defect[ive] and dangerous condition of said machinery and appliances, and of every part thereof, as aforesaid."
Since our practice authorizes plaintiffs, in such actions as this, to plead in one paragraph various different defects as the cause of the injury, we cannot, in considering the complaint, confine ourselves to a consideration of one or more only, to the exclusion of the others. Nor is the plaintiff to be thus restricted in his proof. Upon the trial it is sufficient if he prove so many of the acts of negligence charged as will establish his case. Diamond Block Coal Co. v. Edmonson, 14 Ind.App. 594, 43 N.E. 242, and cases cited; Standard Oil Co. v. Bowker, 141 Ind. 12, 40 N.E. 128.
There was no error in overruling the demurrers.
We come now to the questions presented by the motion for a new trial.
It was proved, by the sheriff's return upon the summons, that it was served on appellant before the expiration of the two years, by which the cause of action would have been barred.
In considering the sufficiency of the evidence to sustain the verdict, it must be borne in mind that, by its general verdict, the jury, whose members saw and heard the witnesses, observed their manner, their apparent intelligence and bias, has found all the facts essential to a recovery in appellee's favor. This verdict has received the approval of the trial judge. To us, upon appeal, it is not allowable to reverse the judgment upon the evidence, unless there be an entire lack of evidence, either direct or inferential, to sustain some fact absolutely necessary to appellee's success.
There is evidence to establish the following facts:
Appellee was a laborer, who had been hired about a year before the accident, to help generally, and who had been employed for eight or nine months to shovel coal, to oil the shaftings and pulleys in appellant's large shops, and also to repair the belts when called upon for that purpose. No express duty of inspection or examination of machinery was imposed upon him by the terms of his contract or the directions of his superior. One piece of machinery which he oiled was a rattler, a large iron cylinder about four feet in diameter in which boiler flues were placed to be rolled about and thus cleaned. The power was transmitted to it by a large cogwheel, on which worked a smaller one. The latter was attached to a shaft, which was caused to revolve by a belt running over two pulleys, one upon it and another upon the main shaft. Upon the small shaft which connected with the cogwheel, were two pulleys, one next to the cogwheel, which was loose, and the other attached to the shaft and called a fast pulley, 1-16 to 3-8 of an inch east of the former. When the belt was on the latter, the rattler and cogwheels were in motion. When upon the loose pulley the latter revolved, but the shaft and machinery remained fixed. When the machinery was in motion, the loose pulley would also revolve, but it could be readily stopped. A lever extended under the framework, to which the shaft was fixed. Upon the end next to the belt were two arms extending upward above the belt, by which, when the handle of the lever in front was pushed the one way or the other, the belt was shifted to the one pulley or the other. Above the handle in front was a metal disc with holes, through which pins were let...
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