United States Cement Co. v. Cooper
| Decision Date | 28 April 1909 |
| Docket Number | No. 21,452.,21,452. |
| Citation | 172 Ind. 599,88 N.E. 69 |
| Parties | UNITED STATES CEMENT CO. v. COOPER. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Lawrence County; James B. Wilson, Judge.
Action by Spencer E. Cooper against the United States Cement Company. Judgment for plaintiff, and defendant appealed to the Appellate Court, where the judgment was reversed (82 N. E. 981) for misconduct of counsel for plaintiff, and defendant, after denial of a petition for a rehearing, had the case transferred to the Supreme Court under Burns' Ann. St. 1908, § 1394, cl. 2. Judgment of the trial court reversed, and cause remanded.Elmer E. Stephenson, Henry C. Duncan, Ira C. Batman, and W. H. Martin, for appellant. J. E. Boruff and R. R. Boruff, for appellee.
The United States Cement Company, defendant below, appealed from a judgment against it to the Appellate Court, where the judgment was reversed, and the cause remanded to the circuit court for a new trial. There was no petition for a rehearing filed in the Appellate Court by the appellee, Spencer E. Cooper, but the cement company, appellant, being dissatisfied with the declarations of law contained in the opinion of the Appellate Court, filed its petition for a rehearing, and for a modification of the opinion and mandate. Appellant's petition was overruled, and thereupon, in due season, it filed its application, under clause 2, § 1394, Burns' Ann. St. 1908, for a transfer of the case to the Supreme Court, alleging therein that the decision of the Appellate Court is in conflict with certain specified ruling precedents of this court. Is appellant, within the meaning of the statute, such a “losing party” as is entitled to have the opinion of the Appellate Court reviewed by this court? We think it is. The statute (section 1394, supra) does not say “any party” against whom a judgment has been reversed. The language is “any losing party,” who has filed, and had overruled, a petition for a rehearing, may apply for a transfer of the case to the Supreme Court, on the ground the decision complained of contravenes a ruling precedent of the Supreme Court, or that a new question of law has been presented and decided incorrectly. It will be observed that the question presented here, by an application to transfer, is not whether the decision of the Appellate Court is right or wrong, but is the statement and application of legal principles therein at variance with the decision of like or kindred questions by the Supreme Court? The obvious purpose of the Legislature in providing for this class of transfers from the Appellate to the Supreme Court was to keep the decisions of the two courts of appeal harmonious and consistent, and thus avoid the confusion that would arise from two incompatible lines of legal interpretation. Barnett v. Furnace Co., 157 Ind. 572, 62 N. E. 6;Klein v. Gravel Co., 162 Ind. 509, 70 N. E. 801. It is alleged in the application that the reversal of the judgment by the Appellate Court in favor-of appellant was on account of a mere technical error, namely, “misconduct of counsel” for appellee, and that the law of the case, as declared by the court in its ruling upon the demurrers to the complaint, is so erroneously stated, and so firmly established in this particular case, as to make a retrial wholly unavailing to appellant. Assuming these averments to be true, appellant is the real losing party, and, as shown, the only party that felt aggrieved by the decision of the Appellate Court, and the only party that filed a petition for a rehearing of the cause. If it is a fact that the decision of the Appellate Court, as alleged, contravenes ruling precedents of this court, a denial of the transfer will unquestionably violate the spirit, if not the letter, of the statute, and leave in full force and effect a decision that is calculated to puzzle and misguide lawyers and trial courts. The statute is remedial, and a liberal construction should be given to accomplish the purpose of its enactment. The question before us is unlike that presented in Standard Pottery Company v. Moudy, 164 Ind. 656, 74 N. E. 242. In the latter case it did not appear that the appellant, in whose favor the judgment was reversed for a new trial, was in any way prejudiced by the decision. He filed a motion to modify the judgment, but filed no petition for a rehearing of the case, which latter step is, under the statute, essential to the right to transfer. We think the application in this case comes within the statute, and the appellant was entitled to a review of the judgment by this court. Suit by appellee to recover damages for personal injuries alleged to have been received by the negligence of appellant. It is shown by answers to interrogatories that the United States Cement Company maintains a plant for the manufacture of cement, and employs, among other devices, what is called a “screw conveyor.” The conveyor, which is propelled by steam power, is about 80 feet long, and composed of a cylindrical iron rod 3 inches in diameter, resting at each end in a bearing, and encircled by steel flanges 4 or 5 inches wide, in spiral form, which, when being operated, is revolved in a iron-lined box, for most part uncovered at the top. The box is about 18 inches wide, is horizontal in position, north and south, rests on the floor level, and is about 18 inches high. The sides of the boxes are about 4 inches above the top of the revolving screw. The box traverses, and rests on, 10 hopper-shaped bins, and the office of the screw is to convey to, and distribute in, the bins crushed stone. Immediately on the west side of the box is a board walk, 3 or 4 feet wide, for the use of employés. The plaintiff, a young man of 18, was employed to attend the conveyor, and superintend the proper distribution of the crushed stone delivered in the bins and his duties required him to step across and recross the conveyor box occasionally. He had been engaged at the place two days, and, while in the act of crossing the conveyor box at a place where it was not covered, stumbled and threw his foot into the box, and was injured by the revolving screw. The box could have been covered without impairing its usefulness, and in fact was, for the use of the employés in crossing, covered a few feet north and a few feet south of the point where the plaintiff attempted to cross at the time of his injury. The complaint is in three paragraphs. The first, for negligence, is grounded upon the common law, and the second and third are based on section 8029, Burns' Ann. St. 1908, the same being section 9 of the factory act of 1899 (Laws 1899, p. 234, c. 142). The negligence charged in the first paragraph is: First, for failure to place a top on the conveyor box; second, for failure to provide a way by which appellee could fully discharge his duties about the bins, without crossing over the conveyor box; third, negligence in placing 4 electric wires about 3 feet above, and immediately over, the conveyor box, so that the plaintiff was compelled to stoop when passing across the conveyor box. A separate demurrer to each paragraph, for insufficiency of facts, was overruled. Trial by jury, and verdict and judgment for appellee for $500, with answers to interrogatories. Appellant's motion for judgment on such answers, as was also its motion for a new trial, was overruled.
It clearly appears from the answers to interrogatories that the verdict rests upon the second and third paragraphs of the complaint, which fact relieves us from a consideration of the first paragraph, since, if it were bad, the overruling of the demurrer to it did not injure the defendant. A description of the screw conveyor is set forth in the second paragraph, and it is averred that this conveyor is revolved rapidly by machinery in an iron-lined box (which is described), and thus forces forward crushed stone, which is delivered in the box by other machinery; that on July 7, 1905, the work of appellee compelled him to pass about and over said screw conveyor, which was uncovered, open, and exposed, and without guard or protection, contrary to the laws of Indiana relating to the use of machinery in mills; that said unguarded and unprotected screw conveyor was dangerous to employés of the mill who were required to work with and about it; that it could have been guarded at small cost without interference with the proper use thereof; that the plaintiff, while in the line of duty and doing the work the defendant directed him to do, and while stepping over the conveyor, lost his balance, and, falling, his right foot and leg were caught in said conveyor, and torn, lacerated, and crushed -all of which happened because of the failure of the defendant to guard said screw conveyor as provided by law. The third paragraph is like the second, except that it alleges that the plaintiff's foot while stooping to avoid electric wires which were a short distance above the conveyor box, became entangled, and he fell, throwing one foot and leg into the conveyor box which was caught by the flanges of the screw and injured.
It is the imperative duty of the master of a manufacturing establishment to guard dangerous machinery therein, as specified in section 9 of the act of 1899 (Acts 1899, p. 234, c. 142; Burns' Ann. St. 1908, § 8029), and a failure to do so is negligence per se. Monteith v. Kokomo, etc., Co., 159 Ind. 149, 64 N. E. 610, 58 L. R. A. 944;Davis v. Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899;Huey Co. v. Johnston, 164 Ind. 489, 73 N. E. 996;Inland Steel Co. v. Yedinak (this term) 87 N. E. 229. The action proceeds upon the theory that the plaintiff was injured because of the failure of the master to perform a statutory duty, and in such cases the doctrine of assumed risks does not apply. Davis Coal Co. v. Polland, 158 Ind. 607-615, 62 N. E. 492, 92 Am. St. Rep. 319;Island Coal Co. v. Swaggerty, 159 Ind. 664-667, 62 N. E. 1113, 65 N. E. 1026;Diamond, etc., Co. v. Cuthbertson,...
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