Thomas Madden, Son & Company v. Wilcox
| Decision Date | 24 May 1910 |
| Docket Number | 21,675 |
| Citation | 91 N.E. 933,174 Ind. 657 |
| Court | Indiana Supreme Court |
| Parties | Thomas Madden, Son & Company v. Wilcox, by Next Friend |
Rehearing Denied November 22, 1910.
From Hendricks Circuit Court; James L. Clark, Judge.
Action by Ralph Wilcox, by his next friend, against Thomas Madden Son and Company. From a judgment on a verdict for plaintiff for $ 4,000, defendant appeals. Transferred from Appellate Court under subd. two, § 1394 Burns 1908, Acts 1901 p 565, § 10.
Affirmed.
Elmer E. Stevenson, for appellant.
Remy & Berryhill, for appellee.
This is an action for a personal injury sustained by a servant on account of alleged negligence of the master.
The errors assigned and relied upon for a reversal of the judgment, are the overruling of appellant's motion to make each paragraph of the complaint more specific, its demurrer to each paragraph on the ground that the facts therein alleged were insufficient to constitute a cause of action, and its motions for judgment on the interrogatories and the answers of the jury thereto, notwithstanding the general verdict, and for a new trial.
The complaint is in two paragraphs, and a condensed statement of the allegations of the first paragraph is as follows: That appellant is a corporation owning and operating a factory in the city of Indianapolis; that on February 8, 1905, appellee was in its employ, and had been for six months, and under his employment had been and was engaged in nailing or wiring springs on couches, lounges and davenports; that appellee was then a minor, under sixteen years of age, inexperienced in mechanical labor, and ignorant of the dangerous character of a towpicker, and by reason of his youth and inexperience was unable to comprehend and judge of the dangers attendant upon working about a towpicker; that on said date appellant, well knowing that appellee was young, inexperienced in the use of machinery, and without capacity and judgment to do the work to which he was about to be assigned, by and through William Proctor, its general foreman of the upholstering department, whose orders appellee was bound to obey, negligently ordered and directed appellee to leave his usual and ordinary service of wiring springs, and to operate and work at a machine commonly called a towpicker, and negligently failed to give him any warning of the attendant dangers, or sufficient instruction as to how to operate said machine; that said towpicker was a machine through which tow was run preparatory for use in upholstering furniture, and contained sharp, steel teeth, knives or bits, fastened to a journal, with belt-pulley, cogwheel and other attachments, which were made to revolve with great force and rapidity by steam-power, over which appellee had no control; that while appellee was working at and about said machine as ordered and directed, and engaged in removing tow from the rear thereof, and in the exercise of due care, his right hand was, by the moving tow and the force of the machinery, suddenly drawn into said machine and against the revolving teeth, knives and bits, and the fingers and thumb of his right hand cut and torn off, all on account of appellant's negligence, as aforesaid, in ordering appellee to leave his usual and ordinary employment and to work with said machine, without warning or instruction, well knowing his youth, inexperience lack of capacity and judgment.
The second paragraph of complaint is substantially the same as the first, except that there is no averment that appellee was working outside the scope of his employment at the time of receiving his injury.
The grounds of appellant's motion to make each paragraph of the complaint more definite and certain were as follows: This motion in the main calls for mere evidentiary details, which are not required to be stated in a pleading, but if desired may be obtained by other proceedings than a motion to make the complaint more specific. The facts are stated with sufficient clearness and fulness to enable a person of ordinary understanding to comprehend the ground of complaint made, and the manner in which the accident occurred. It cannot be plausibly urged that appellee should have described more minutely the dangers incident to the operation of appellant's machine, of which he alleges he was ignorant, and which he was unable to understand and appreciate, but which hazards and dangers were necessarily within appellant's knowledge. Knickerbocker Ice Co. v. Gray (1908), 171 Ind. 395, 84 N.E. 341; Louisville, etc., R. Co. v. Crunk (1889), 119 Ind. 542, 12 Am. St. 443, 21 N.E. 31; Indiana Bicycle Co. v. Willis (1897), 18 Ind.App. 525, 48 N.E. 646; Cox v. Providence Gas Co. (1891), 17 R.I. 199, 21 A. 344; Schaake v. Eagle, etc., Can Co. (1902), 135 Cal. 472, 485, 63 P. 1025, 67 [174 Ind. 663] P. 759; Schneider v. Wisconsin Cent. Co. (1892), 81 Wis. 356, 51 N.W. 582; Louisville, etc., R. Co. v. Jones (1887), 83 Ala. 376, 3 So. 902; Goshen, etc., Turnpike Co. v. Sears (1828), 7 Conn. 86.
The court did not err in overruling appellant's motion to make each paragraph of the complaint more definite and certain.
It is next urged that each paragraph of the complaint is insufficient, and appellant's demurrer thereto should have been sustained. It appears from the answers to interrogatories that the verdict is founded upon the first paragraph of complaint, and hence it will not be necessary to determine the sufficiency of the allegations of the second paragraph.
The gist of the complaint is that appellee was employed in appellant's factory to nail springs on couches, lounges and davenports, and was engaged in that work; that he was under sixteen years of age, inexperienced in the use of machinery, and incapable of comprehending the dangers attending the operation of the machine mentioned, which facts were well known to appellant, and that with such knowledge appellant negligently ordered him to leave his customary work, and to operate and work about a machine containing revolving knives and teeth propelled by steam-power by means of belt-pulley, cogwheels and gearing, and negligently failed to give him any warning of danger, or any instruction in regard to the use of the machine.
These allegations certainly constitute a cause of action. The service in which appellee was engaged under his usual employment was simple and comparatively free from danger of serious personal injury. It is averred that he was taken from this service and assigned to other duties outside the scope of his employment. This was a breach of appellant's duty. It is also charged that he was young and inexperienced, and was assigned new and strange duties without warning or instruction with respect to the performance thereof, and this was a breach of duty. It is further alleged that he was not only young and inexperienced, but that his youth and inexperience were such that he was incapable of appreciating the danger to himself from the use of the machine described, and that appellant then and there knew these facts. If this allegation is true, and it must be so regarded in this connection, then appellant's conduct in requiring him to operate the machine was little short of criminal.
The insistence of appellant's counsel is that there is no showing in the complaint that the towpicker was a dangerous machine, or that in its operation appellee was exposed to any danger against which he should have been warned. The court judicially knows that a machine, consisting of a cylinder equipped with steel knives or teeth, revolving rapidly, is a more dangerous instrument for an inexperienced boy to operate than is a tack-hammer. It appears that this machine was equipped with belt-pulley, cogwheels and gearing, and the statutes of this State, in classifying manufacturing establishments as hazardous places for the employment of children, have specifically named "cogs, gearing and belting" as dangerous machinery. It was not required that appellee allege, in terms, that a towpicker of the description given, in use in a factory, was a dangerous machine to a youthful and inexperienced operative. It is manifest that by the transfer to the towpicker appellee was required to encounter greater risks and perils than those surrounding him in his usual employment. A child under fourteen years of age is, in effect, declared by law to be incapable of incurring the risks incident to the operations of a manufacturing establishment, and if employed therein in violation of the statute, and injured in consequence, he is not chargeable either with assumption of risks or contributory negligence. Inland Steel Co. v. Yedinak (1909), 172 Ind. 423, 87 N.E. 229.
Appellee could not be held to an assumption of unknown risks while at work in pursuance of orders, outside the scope of his employment, and if he was lacking in mental capacity, as alleged, he could not be held accountable for not avoiding patent conditions which to mature minds might appear obviously dangerous. In disposing of the question of proximate cause in the case of Inland...
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