Whiteley Malleable Castings Co. v. Wishon
| Decision Date | 07 October 1908 |
| Docket Number | No. 6,214.,6,214. |
| Citation | 42 Ind.App. 288,85 N.E. 832 |
| Parties | WHITELEY MALLEABLE CASTINGS CO. v. WISHON. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Delaware County; Jos. G. Leffier, Judge.
Action by Granville H. Wishon against the Whiteley Malleable Castings Company. From a judgment for plaintiff, defendant appeals. Affirmed.Ralph S. Gregory and Walter J. Lotz, for appellant. Templer & Ogle and Geo. H. Koons, for appellee.
Appellee brought this action against appellant to recover damages for personal injuries alleged to have been caused by appellant's failure to guard a certain friction wheel and machinery as required by the factory act. Section 8029, Burns' Ann. St. 1908. The issue was formed by a complaint in one paragraph, answered by a general denial. Trial by jury. General verdict in favor of appellee. And, over appellant's motion for a new trial, judgment was rendered on the verdict for $1,200. With the general verdict the jury returned answers to 164 interrogatories. A demurrer to the complaint was overruled, and this ruling is assigned as error.
Two objections are urged against the complaint: (1) It is argued that the complaint does not allege that the device in question could have been guarded without rendering it useless for the purpose for which it was intended. (2) That it fails to show that the friction wheel and machinery in question were of the kind designated in the statute to be guarded. The complaint shows, among other facts, that a part of appellant's machinery used in the manufacture of its goods, and situated in its manufacturing establishment, were iron structures called “rattlers”; that each of said rattlers were about four feet long and three feet in diameter, barrel-shaped, and set to revolve in a framework, and all made of iron; that said rattlers were set in pairs, and on either side of a countershaft turned and made to revolve by belting, pulley wheel, line shaft, gearing, belting, wheels, and machinery, connected therewith by power from a motor dynamo, engine and boiler. Fastened on the end of this shaft, and about four feet above the floor of the room, was a friction wheel about ten inches in diameter, with a friction surface of about five inches in width; that, by means of a lever, the friction surface around the end of the rattlers was brought in contact with said wheel, and the rattlers thereby were made to revolve as a part of the machinery used by appellant in the manufacture of its goods. The use of said rattlers, the manner in which they were filled and emptied, the method of stopping and starting them, were fully described. The complaint characterized appellee's employment as that of floorman. His duties were to take iron on trucks from the annealing room to what was known as the “rattling room,” and to assist in loading said rattlers with said iron. The complaint charges that during all the time appellee was engaged in said work, and at the time he was injured, said rattlers and the friction wheel, which constituted a part of said rattling machines, and the gearing thereof, were at the time appellee received his injuries, and during all the time he was so employed, negligently left wholly unguarded, and, when running, were dangerous to the lives and limbs of the employés, of which appellee was one, while working around the same; that “it was practical and proper for the defendant to have had said rattling machine, said pulley wheel, *** friction wheel, and machinery of every kind, character, and nature composing said parts of said rattling machines properly guarded, *** and to cause the same to be kept effectually and properly guarded when in use”; that said rattler and friction wheel could be operated as well with the guard thereon; that the rattler, when not in motion, was within one-half inch of the friction wheel, which continued to revolve upon the shaft; that while appellee was engaged in discharging his duties to appellant under his employment, by assisting in filling one of said rattlers, his right hand was caught between the revolving friction wheel and rattler, whereby it was crushed and injured. The machine in question, as particularly described in the complaint, may be better understood by reference to the following cut:
Image 1 (5.28" X 2.96") Available for Offline Print It has often been affirmed as a rule of pleading that a party can have the benefit of a statute only by pleading facts showing himself clearly within its provisions. Ft. Wayne Iron, etc., Co. v. Parsell, 168 Ind. 223, 79 N. E. 439. In the case at bar the statute upon which this action is founded does not specifically name a friction wheel as an appliance or machine to be guarded. It does provide that gearing, shafting, “and machinery of every description therein shall be properly guarded.” This statute has been construed by the appellate tribunals of this state as applying to certain specifically named appurtenances or equipments of manufacturing establishments, and all other machinery or appliances within the class designated as vats, pans, etc. La Porte Carriage Co. v. Sullender, 165 Ind. 290, 75 N. E. 277;Bemis-Indianapolis Bag Co. v. Krentler, 167 Ind. 653, 79 N. E. 974;National, etc., Co. v. Roper, 38 Ind. App. 600, 77 N. E. 370.
The question here is: Does the pleading show a breach by appellant of a statutory duty? It appears that the rattlers were set in motion by means of a friction wheel. Appellee's hand was caught between the wheel and rattlers, and thereby injured. It appears that the appliance or machinery, when in motion, was dangerous to the lives and limbs of the persons there employed, and that it could have been effectually and properly guarded and operated as well with the guards thereon. These facts, while not as clearly stated as they might be, sufficiently show that the appliance which caused the injury could have been “properly guarded” without rendering it useless for the purpose for which it was intended to be operated. Huey Co. v. Johnston, 164 Ind. 489, 73 N. E. 996;Kintz v. Johnson, 39 Ind. App. 280, 79 N. E. 533. Was the equipment or machine in question one which the statute required appellant to guard? The statute uses the word “gearing” as designating a factory equipment to be guarded. The word “gearing” is defined as “the parts by which motion imparted to one portion of an engine or machine is transmitted to another.” A friction wheel as “one of the wheels in frictional gearing,” and frictional gearing “wheels which transmit motion by surface friction, instead of teeth.” Webster. The friction wheel as here described was used for transmitting motion to the rattlers, and is within that class of appliances termed by the statute as “gearing.” The wheel and the rattlers were constructed with a friction surface, and with reference to each other. The motion imparted to the wheel was transmitted to the rattlers by surface friction. The appliance, as constructed and used by appellant, was fully covered by the word “gearing” found in the statute, and required to be “properly guarded.” The complaint was sufficient to withstand the objections urged against it.
Appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict was overruled, and this ruling is assigned as error. Appellant insists that the answers to the interrogatories show that appellee at the time he received his injury was not exercising ordinary care, and was not at the time acting in the line of his employment, and that he selected an unsafe, instead of a safe, way to do his work. From the interrogatories, we learn that appellee on August 9, 1905, was in the employ of appellant in the annealing room and the south rattling room in the capacity of what was known as a “floorman.” But the exact duties of a floorman are not shown. Immediately prior to the accident, appellee was engaged in trucking iron castings from the annealing room into the rattling room and piling the same about the rattlers. The rattlers were set in pairs, lengthwise, east and west. Between the castings and rattlers, on the north side, was a clear space of about two feet in width. While the south rattler of the west pair, and the friction wheel which ran them, were in motion, appellee appeared from the annealing room with a load of castings, and stopped near the center of the west end of said pair of rattlers. The north rattler was standing still, and was being filled with castings taken from the pile on the north side by a party standing in said vacant space. From the west end of the north rattler appellee undertook to throw into it a piece of casting weighing about 20 pounds. In doing this he slipped, and his hand was caught between the friction wheel and the south rattler, and was injured. The top of the friction wheel was about four feet above the floor of the room. The wheel was unguarded and in plain view of appellee, who had good eyesight and hearing. No doubt, had appellee thrown the casting into the rattler from...
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