United States Cement Co. v. Koch

Citation85 N.E. 490,42 Ind.App. 251
Decision Date02 July 1908
Docket Number6,271
PartiesUNITED STATES CEMENT COMPANY v. KOCH
CourtCourt of Appeals of Indiana

From Lawrence Circuit Court; James B. Wilson, Judge.

Action by William Koch against the United States Cement Company. From a judgment on a verdict for plaintiff for $ 7,500 defendant appeals.

Reversed.

Duncan & Batman, Elmer E. Stevenson and William H. Martin, for appellant.

Boruff & Boruff, Byron K. Elliott and William F. Elliott, for appellee.

RABB C. J. Roby, J., absent.

OPINION

RABB, C. J.

The appellee sued appellant to recover damages for personal injuries alleged to have been caused by the negligence of the appellant. The complaint was in seven paragraphs. Appellant demurred separately to each paragraph of the complaint. Its demurrer was overruled and exception reserved. Issues were formed, a trial had, resulting in a general verdict and judgment in favor of appellee. Among other errors assigned in this court and relied upon for reversal, is the overruling of appellant's demurrer to the complaint.

We are met at the threshhold of the case by appellee's contention that the transcript of the record is not properly before us, for the reason that it is not authenticated by the seal of the court, or a proper certificate from the clerk. An examination of the transcript discloses that the same is attested by the seal of the court. The impression is not made as distinctly as it should have been, but it is upon the certificate, and that it was not more carefully done is no fault of the appellant.

The appellant filed with the clerk the following precipe for a transcript: "William Koch v. United States Cement Company. The clerk will please prepare and certify a complete transcript of the record in the above-entitled cause for appeal to the Appellate Court of the State of Indiana. He is also requested to certify the original bill of exceptions containing the evidence, instead of a copy thereof." (Signed by the appellant's attorneys.) The clerk's certificate was as follows: "I, Boone Leonard, clerk of the Lawrence Circuit Court, within and for the State of Indiana, do certify that the above and foregoing transcript contains full, true and correct copies, or the originals, of all papers and entries in said cause required by the above and foregoing precipe." The certificate is attested by the clerk under the seal of the court. We think this certificate is in proper form, and that the attestation to the record is duly made.

It is further contended by appellee that no question is presented upon the ruling of the court on the demurrer to the several paragraphs of the complaint, for the reason that while the demurrer was to each paragraph separately, the exception was joint and not several. The form of the demurrer was as follows: "The defendant, the United States Cement Company, demurs separately to the first, second, third, fourth, fifth, sixth and seventh paragraphs of plaintiff's amended complaint, and for cause of demurrer as to each paragraph says that the same does not state facts sufficient to constitute a cause of action." The ruling of the court upon the demurrer and exception thereto was in the following language: "The court overrules the demurrer to each paragraph of the amended complaint, to which ruling of the court the defendant at the time excepts as to each." Appellee relies upon the following cases as supporting his contention: Noonan v. Bell (1902), 159 Ind. 329, 64 N.E. 909; Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L. R. A. 460, 68 N.E. 262. These cases have, however, been expressly overruled upon this point by the case of Whitesell v. Strickler (1907), 167 Ind. 602, 78 N.E. 845. The exception to the ruling of the court on the demurrer properly presents to this court the question of the sufficiency of each paragraph of the complaint.

The first paragraph of the complaint alleges that the appellant owns and operates a large cement plant in Lawrence county, in this State; that this plant consists of several buildings connected by trenches, shafts, pulleys, conveyors and elevators, and that the different buildings contain engines, dynamos, rock crushers, mills for grinding coal, bins for holding the same, and other machinery; that the conveyors and elevators are used for transporting the ground and unfinished material to the different rooms and mills for treatment; that on February 21, 1905, appellee was at work for the appellant in one of the buildings, designated as the coal room, the place where coal was ground or crushed into fine powder, in what are described as Griffin mills; that four of the mills were in the room where appellee was at work; that the coal was conveyed to these mills in large particles from coal-bins where it had been previously kiln-dried; that after the coal was ground it was carried from the mill through a shoot to a conveyor box, which is a half circular, sheet iron box surrounded by a wooden box, which conveyor box is built at the bottom of a trench located at the rear of the mills, and is about forty feet long, seven feet deep, and from two to three feet wide, with perpendicular sides, the bottom and walls of the trench being constructed of cement or concrete; that at the bottom of the trench, on the side next to the mills, is a screw conveyor, built over the half circular, sheet iron box, which is run by machinery, and extends the whole length of the trench, and is designed to convey the powdered coal from the mill to a receptacle or pit at each end of the trench, which is six or eight feet in length; that from these receptacles an elevator extends some forty feet high, consisting of an endless gum belt with cups attached, enclosed in a sheet iron case, which is run by machinery, and which conveys the dust from the receptacles to other and distant parts of the plant; that all of the machinery is run by electricity generated by a dynamo in said building; that, when the mills are in operation, the air in the room is so filled with coal dust that it darkens the room to such an extent that objects cannot be distinctly seen, especially in the trenches and pits; that at the time plaintiff was injured it was dark in said room, being 7:30 o'clock p.m. of said day; that this fine coal dust settled over the floor at the bottom of the trench, and into the pit or receptacle at the end of the trench, and where it so accumulates to any extent it is liable to ignite, explode and cause a fire, and therefore this coal dust should not be permitted to accumulate; that when plaintiff began work on February 21, 1905, he had not previously worked for the defendant for ten days, and was informed when he began work that all of said dust had been cleaned up at quitting time on the day previous, and that there was no dust down in said trench or pit, but the defendant had negligently and knowingly permitted said fine coal dust to accumulate for several days in said trench, to a depth of several inches, and in the pits at the end of said trench to a depth of some three feet; that the accumulated dust was liable to explode and ignite, and it rendered the place dangerous and unsafe, of all of which facts the defendant at the time of the injury herein mentioned had full knowledge, or might have had by the exercise of reasonable care; that the plaintiff could not see said coal dust from where he worked, nor could he have known by the exercise of reasonable care, nor did he know of the existence of the same. The plaintiff alleges that about 7:30 o'clock in the evening of said day he noticed a blaze in the conveyor box at the bottom of the trench; that he went down into said trench to extinguish the blaze; that while he was down in said trench the coal dust which the defendant had carelessly and negligently permitted to accumulate, and the coal gas and dust in said trench, suddenly exploded, and the whole trench and pit became one blaze of fire, and that in consequence plaintiff suffered the injuries described in his complaint.

In all other paragraphs of the complaint the allegations are substantially the same, except that in the second it is alleged that the defendant carelessly and negligently constructed the conveyor box and spout out of pine lumber, so that it was liable to and did catch fire from the hot coal dust which came from the Griffin mills, and carelessly and negligently permitted the lid of the box to remain open and out of repair so the dust could get into the trench, and that the defendant carelessly and negligently constructed the spout which led from the conveyor box to the elevator shaft in such way that it did not fit against the boot of the shaft; that the spout was out of repair and had not fitted against the boot for several days; that the spout was also broken or split, all of which left an opening two or three inches in width between the end of the spout and the shaft; that the boards on top of the spout were loose, and some of them removed therefrom, which defects permitted the coal dust to run out and accumulate in the pit, rendering the place unsafe and dangerous; that the defendant was negligent and careless in that it had built in the conveyor box wooden doors or slides which did not fit securely, and were partially open so that the coal dust fell into said pit or trench, of all of which facts, before set out, the defendant had full knowledge at the time of the injury mentioned herein, and the plaintiff did not know at the time of their existence.

The third paragraph varies from the first in that it alleges that the defendant was negligent in failing to provide a ladder to get out of the pit. The jury found against the appellee on the fourth paragraph of the complaint.

The fifth paragraph varies from the first in...

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