Ætna Powder Co. v. Earlandson

• Decision Date: 24 May 1904
• Docket Number: No. 4,727.,4,727.
• Citation: 71 N.E. 185,33 Ind.App. 251
• Parties: ÆTNA POWDER CO. v. EARLANDSON.
• Court: Indiana Appellate Court

33 Ind.App. 251

71 N.E. 185

ÆTNA POWDER CO.

v.EARLANDSON.

No. 4,727.

Appellate Court of Indiana, Division No. 1.

May 24, 1904.

Appeal from Superior Court, Porter County; H. B. Tuthill, Judge.

Action by Oscar Earlandson against the Ætna Powder Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John B. Peterson, F. W. Ullman, and N. W. Hacker, for appellant. J. A. Patterson and A. F. Knotts, for appellee.

ROBINSON, J.

Suit by appellee for damages for personal injuries. The complaint avers: That appellee was employed to fire and attend certain vats used in the manufacture of dynamite in appellant's factory, which consisted of buildings, outbuildings, furnaces, tanks, and machinery. That the tools and implements which appellee used were kept in a toolhouse about 60 feet from where he worked, between which places was a well-defined pathway or walk. In this path, about three feet underground, was a line of steam pipe leading from one part of the works to another; and in the walk or path was a pit about four feet deep and four feet square, which had a plank covering, which pit was used to reach the pipe. The covering of the box was level with the path, and appellee, in performing his work, was required to and did pass along the walk over the pit and pit cover very many times each day, and had seen other employés do the same thing, and that appellee knew it was safe to pass along the walk over the pit when the cover was in place. That on January 8, 1890, about 3 o'clock in the afternoon, by direction of the assistant superintendent, another employé removed the covering, and carelessly left the pit uncovered, without guards or lights, and without notice to appellee. That the pit was at the time partially filled with boiling water, which the assistant superintendent knew. That at about 5:30 p. m., while in the exercise of due care, appellee, while walking along the path towards the toolhouse to get tools with which to work, not knowing the pit was uncovered, and, on account of the darkness, unable to see that it was uncovered, fell into the pit, and was injured.

It is first argued under the motion for a new trial, overruling which is the only error assigned, that the evidence shows appellee guilty of contributory negligence. There is evidence that appellee was traveling the path usually traveled by employés while engaged in their work, that the pits were left covered, and were safe when covered, which appellee knew; that he did not know the pit was uncovered at the time; that it was about dark; that appellee carried a lantern, but there is some evidence to show that it was foggy. It cannot be said that appellee deliberately walked into the pit. He had walked over the place several times during the day before the cover was removed, and he had no reason to expect that it would be uncovered at the time. Having no reason to suspect danger, he was not required to keep his eyes constantly on the ground in front of him. There is nothing to show that the conditions surrounding him at the time were such as required him to exercise extraordinary care. He could not be held responsible for exposing himself to a danger of which he knew nothing, and of which he was under no obligation to inform himself. He was not bound to guard against any peril which he had no reason at the time to suspect. It was the jury's duty to say whether, when...