W. McMillen v. Hall
| Decision Date | 24 June 1915 |
| Docket Number | No. 8657.,8657. |
| Citation | 109 N.E. 424,59 Ind.App. 545 |
| Court | Indiana Appellate Court |
| Parties | W. McMILLEN & SON v. HALL. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Owen County; James B. Wilson, Judge.
Action by Clara R. Hall, as administratrix of Morton M. Hall, deceased, against W. McMillen & Son, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.Batman, Miller & Blair, of Bloomington, and Fowler & Elliott, of Spencer, for appellant. Frank L. Hume, of Chicago, Ill., and Rufus H. East, of Bloomington, for appellee.
On September 5, 1911, Morton M. Hall, a foreman in appellant's stone plant, in the city of Chicago, was severely injured by several large slabs of stone falling from a transfer truck over and upon him, while he was passing alongside a track on which a truck was being moved, transporting stone in appellant's yard. Death resulted from the injury within two days thereafter, and for which appellee recovered a judgment against the appellant, for the benefit of his next of kin, in the sum of $6,000, on the ground that his death was caused by the negligent conduct of appellant. From this judgment appellant has appealed.
Errors relied upon for reversal are: (1) Overruling appellant's demurrer to each paragraph of the complaint; (2) neither paragraph of complaint states facts sufficient to constitute a cause of action; (3) overruling appellant's motion for judgment on answers to interrogatories notwithstanding the general verdict; (4) overruling appellant's motion for a new trial.
The complaint is in two paragraphs. The first paragraph embraces a charge of common-law negligence. The second is based upon a statute of the state of Illinois, requiring machinery and appliances to be guarded, and is similar to the usual factory act enacted by a number of the states in recent years for the protection of working men.
In substance, the first paragraph of complaint alleges: That appellant is the owner and operator of a stone sawmill in the city of Chicago, Ill., and in the counties of Lawrence and Monroe, this state, and that deceased was employed in the Chicago plant as a foreman with limited authority, subject to orders of appellant's superintendent, and had been thus engaged for five weeks prior to the injury. In the plant was a tramway, on which a traveler was operated by electric power, which could run east and west on the tramway, or north and south on its carriage. A transfer track extended near the tramway, on which a stone truck was operated. A metal rope connected the traveler with the truck on which the stones were placed while being moved from the mill to the yard. Within five feet of the transfer track on the east were a large number of mill blocks, which formed a stone wall ten feet high, and between the stone wall and the track was a passageway used by appellant's employés in going from one side of the millyard to the other. On September 5, 1911, while appellee's decedent was passing through the passageway, several large slabs of stone loaded on the truck, weighing several thousand pounds, fell from the truck upon him, suddenly and without warning. That the injury was caused by the carelessness and negligence of appellant in adopting an improper method in moving the truck loaded with stone. The appliances used were unsafe, and, in order to safely draw out the car when loaded with stone, appellant should have maintained at the end of the track, on which the truck was operated, a grooved wheel, securely fastened for the purpose of running the metal cable through from the traveler and attach the same to the center end of the truck, so as to give a direct pull, but instead appellant used a cable extending from the overhead electric traveler downward and fastened by looping the cable over the end of the beam that projected over the side of the car, causing an indirect pull forward and upward, rendering the truck liable to tip and jostle the stone resting on this beam, thereby endangering the lives of the laborers working in and about the truck. It is likewise alleged: That appellant negligently maintained a defective track upon which the truck was used, in that it was not properly ballasted. That in the middle of the same, which was about 25 feet in length, it would sag when a car loaded with stone would pass over it at this point, which required a greater amount of power to move the load. At the time of the injury the truck stopped at this point on account of the sagging of the track and lack of power, and in starting the same the power was quickly applied with full force, causing the truck to be jerked, and jostling the stone from the truck, which came in contact with appellee's decedent. It is further charged that appellant was negligent in overloading the truck at the time appellee's decedent was injured, and, by so overloading, the traveler had not sufficient power to draw the truck when it reached the point in the track where the track sagged and the speed of the truck ceased, the cable was slackened, and the power then quickly applied, thus violently jostling the stone from the car. Further it is alleged that at the time of the injury, and for six months prior thereto, appellant was negligent in loading the stone on the car by placing the heavy slabs of stone edgewise on the truck, leaning the same against blocks of stone on the side of the car without being properly fastened. It is alleged that appellant had full knowledge of the various defects in the appliances and the place, as set forth in the complaint, and that appellee's decedent was without such knowledge.
The second paragraph of the complaint pleads practically the same facts as the first, and in addition it sets forth the statute of Illinois, requiring power driven machinery and dangerous places in and about factories, mills, or workshops near to which employés are obliged to pass to be properly inclosed, fenced, and otherwise guarded, where practicable; the passageways to be kept well lighted and free from obstructions and to be of ample width. The statute, it is alleged, was violated, and by reason thereof appellee's decedent was injured, which resulted in his death.
It will be observed that the first paragraph of complaint charges four specific acts of negligence: First, defective appliances and improperly applying the power of the electric traveler to the truck drawing the stone; second, a defective track, on which the truck was operated; third, overloading the truck; fourth, in not properly securing and fastening the stone on the truck, while being moved. The demurrer presents the question as to whether either of those charges is sufficiently pleaded to fasten liability upon appellant, under the law.
[1][2] We must approach the examination of the paragraph of complaint under consideration, keeping in mind the general principles of the law that shed light on what it takes to create liability on the part of the master for an injury to his servant while performing services for the master. It can be said generally that it is the duty of the master to furnish a reasonably safe place for the servant to perform his labor, and he must exercise ordinary care in furnishing suitable and proper appliances, with which the labor is to be performed. And the negligence of the master, for which the servant can recover, must have been the proximate cause of the injury.
[3][4][5] On the other hand, when the servant enters upon the employment of the master, as a matter of contract, he assumes the risk ordinarily incident to the employment, and for an injury that results to the servant, which is ordinarily incident to the employment, the master is not liable, nor is he liable if the injury was caused by the contributory negligence of the servant. The master must have had knowledge of the infirmity of the place where the services were being performed, if an injury was caused thereby, or, if by defective appliances, that the same were defective; but it is sufficient if he could have ascertained these facts by the exercise of ordinary care, and the servant must have been without such knowledge. Lyons v. City of New Albany, 54 Ind. App. 416, 103 N. E. 20;Sullivan v. Indianapolis Trac. Co., 55 Ind. App. 407, 103 N. E. 860; 26 Cyc. 1156; Pittsburgh, C. & St. L. Ry. Co. v. Adams, 105 Ind. 151, 5 N. E. 187;Lake Erie & Western R. R. Co. v. McHenry, 10 Ind. App. 525, 37 N. E. 186.
[6][7] Appellant's counsel urge many objections to the pleading under consideration, the most serious of which is that the injury alleged was caused by the conduct of the fellow servants of appellee's decedent. It is true the pleading discloses that the operation of the electric traveler and the truck upon which the stone was being moved, as well as the manner of loading the stone and applying the power to move the loaded truck, were under the control of appellant's servants. It is also alleged, among other things, that the electric traveler had insufficient power and capacity to do the work required of it, and that the track was defective, in not being properly ballasted, and would sink into the earth at a given point when the truck was being moved over that part with a heavy load. The allegation as to the lack of capacity of the electric traveler to perform the work required of it, and the defect in the track, were in their nature inherent defects, and these defects, it is alleged, were within the knowledge of appellant and caused the injury, and that appellee's decedent was unfamiliar with the millyard and premises, and knew nothing of the methods in use in the mill and the premises as to the loading and moving of the stone on the truck. These are allegations of fact; and unless the allegation as to the performance of the service by the fellow servants of appellee's decedent discloses that the injury was caused and grew out of the handling of the appliances by the fellow servants of appellee's decedent, and not by reason of the defective...
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