Whiteley Malleable Castings Co. v. Wishon
| Citation | 85 N.E. 832,42 Ind.App. 288 |
| Decision Date | 07 October 1908 |
| Docket Number | 6,214 |
| Parties | WHITELEY MALLEABLE CASTINGS COMPANY v. WISHON |
| Court | Indiana Appellate Court |
From Delaware Circuit Court; Joseph G. Leffler, 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.
Edward R. Templer, Van L. Ogle and George 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. Acts 1899, p. 231 § 9, § 8029 Burns 1908. The issue was formed by a complaint in one paragraph, to which a demurrer was overruled, and an answer in general denial. Trial by jury. General verdict in favor of appellee. Over appellant's motion for a new trial judgment for $ 1,250 was rendered on the verdict. With the general verdict the jury returned answers to 164 interrogatories. The overruling of the demurrer to the complaint 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 was about four feet long and three feet in diameter, barrel shaped, set to revolve in a frame work, and all made of iron that said rattlers were set in pairs on either side of a countershaft, and were 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; that 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, and 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 alleges 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 negligently left wholly unguarded, and when running were dangerous to the lives and limbs of the employes, of which appellee was one, while working around the same; that "it was practical and proper for the defendant to have 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:
[SEE GRAPH IN ORIGINAL]
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 (1907), 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. Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 75 N.E. 277; Bemis Indianapolis Bag Co. v. Drentler (1907), 167 Ind. 653, 79 N.E. 974; National Fire Proofing Co. v. Roper (1906), 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 could have been operated as well with the guards thereon. These facts, while not as clearly stated as they might be, sufficiently show that the appliances which caused the injury could have been "properly guarded" without rendering the machinery useless for the purpose for which it was intended to be operated. M. S. Huey Co. v. Johnston (1905), 164 Ind. 489, 73 N.E. 996; Kintz v. Johnson (1906), 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" as "wheels which transmit motion by surface friction instead of teeth." Webster's Dict. 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 about two feet in width. While the south rattler of the west pair and the friction-wheel which ran said rattlers 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 not running, and was being filled with castings taken from the pile on the north side, by a party standing in said vacant space. Appellee undertook to throw into the west end of the north rattler a piece of casting weighing about twenty 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 the side instead of from the end the accident would not have happened, but the answers are not such as to warrant us in saying that reasonable men would not differ in their opinion as to whether the act of throwing the casting into the rattler, as was done by appellee, was negligent; and it not appearing that appellee, in assisting to fill the rattler, was a mere volunteer, or that he knowingly violated the master's orders, or that the act was so glaringly dangerous that an ordinarily prudent person would not have attempted it, we would not be justified in concluding that the answers are so antagonistic to the general verdict that both cannot stand, and the ruling of the trial court must be affirmed. City of Jeffersonville v. Gray (1905), 165 Ind. 26, 74 N.E. 611; ...
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