Works v. Doran

• Decision Date: 14 May 1914
• Docket Number: No. 8366.,8366.
• Citation: 105 N.E. 167,59 Ind.App. 583
• Parties: KOKOMO BRASS WORKS v. DORAN.
• Court: Indiana Appellate Court

59 Ind.App. 583

105 N.E. 167

KOKOMO BRASS WORKS

v.DORAN.

No. 8366.

Appellate Court of Indiana, Division No. 1.

May 14, 1914.

Appeal from Circuit Court, Howard County; William C. Purdum, Judge.

Action by John Doran against the Kokomo Brass Works. Judgment for the plaintiff, and defendant appeals. Reversed, with instructions to grant a new trial.William A. Ketcham, Howe Stone Landers, and Ralph M. Ketcham, all of Indianapolis, for appellant. Wilson & Quinn, of La Fayette, and Blacklidge, Wolf & Barnes, of Kokomo, for appellee.

SHEA, P. J.

Appellee brought this action to recover damages for personal injuries received by him while in appellant's employ by reason of its alleged negligence. Appellant's demurrer to the amended complaint in one paragraph was overruled. The jury returned a general verdict in favor of appellee, also answers to 10 interrogatories. Over appellant's motion for judgment in its favor on the answers to the interrogatories notwithstanding the general verdict, and its motion for a new trial, the court rendered judgment in favor of appellee for $4,000.

The errors assigned are the rulings of the court below on appellant's demurrer to the amended complaint, and on the motions for judgment on the answers to interrogatories notwithstanding the general verdict, and for a new trial.

The complaint is long, and we set out only the facts necessary to an understanding of the questions involved. It is alleged, among other things, in substance, that appellant is a corporation engaged in the manufacture and casting of various articles out of brass and aluminum, operating in the city of Kokomo, Ind., where it employs a large number of workmen, to wit: More than 50. Appellee was in appellant's employ as a molder of aluminum, and in the course of his employment it was his duty to fill molds placed in position on the floor of appellant's molding room with aluminum which had theretofore been melted in ovens situated in said room, and to obey the commands and orders of appellant's employé in charge of the ovens in taking the molten metal out of same. There were eight ovens in a row, so constructed that the top was nearly level with the floor of the molding room; the bottom extending downward in a place excavated beneath the floor. The aluminum was melted in round pots placed in the center of the ovens, around which coke was placed and fired up. Near the bottom of each oven was an aperture for removing the ashes which accumulated. In order that the ashes could be readily removed, appellant constructed an excavation which extended several feet away from the ovens to the side thereof. This excavation or hole was covered with iron grates, which, when properly constructed, would fit around the ovens and prevent any opening between said grates and the side of the oven adjacent thereto. The opening in the floor of the foundry room was 4 or 5 feet wide, 6 or 7 feet deep, and about 20 feet long, and covered with iron gratings, so placed that it was necessary for appellee in the performance of his duties as molder to cross them in order to get the metal from the said ovens; the grating being level with the floor and top of the ovens. It is charged: That on May 18, 1911, and for more than 30 days prior thereto, appellant had “carelessly and negligently maintained the grating covering that part of the opening in the floor of the molding room hereinabove described, at and near the last oven, and the farthest distant from the place where the molds were placed, *** so that the said grating was not close up or flush with said oven, but said grating extended to within 2 1/2 or 3 inches of said oven.” That said defect in the condition of the grating and oven was well known to appellant and its officers and agents, or by the use of reasonable care might easily have been known by them. The pots of melted aluminum were heavy and brittle and easily broken, and, if broken while being removed or lifted out of the ovens, the metal woulld run down into the furnaces. That, by reason of the coke being closely packed around the pots, great care was at all times necessary in removing them, and the oven and pots of melted aluminum were extremely hot. That the rim or edge of the ovens, around which appellee was required to stand in the performance of his duties in removing said pots, was about 6 incheswide and constructed of iron. In removing the pots of metal from the ovens, it was necessary for appellee, and it was his duty, to stand over the top of the oven, astride an iron bar with a hook attached to the center thereof, and, after the covering of the oven had been removed, use a pair of tongs provided by appellant for that purpose to place the handle of the pot of melted metal within the hook attached to the iron bar, and, with the assistance of two other employés furnished by appellant, to raise the pot in an exactly vertical direction until it should clear the furnace, then step over said bar so that same could be transported from the furnace to the place where the metal was to be used. That, in stepping over the bar, it was necessary for appellee to move one of his feet a few inches to the right in order that he might have a proper balance. That on May 18, 1911, appellee was specifically ordered and directed by appellant's employé in charge of the ovens to proceed to the last or eighth oven and take therefrom a pot which had been heated and melted to the proper consistency. That he and the two other employés of appellant furnished for that purpose proceeded to said oven and, appellee standing directly over the top of same, removed the lid with a pair of tongs, and took hold of the handle of the pot. The other two employés procured an iron bar when a hook attached in the center of same and lowered the hook into the oven to a point at which appellee was able to and did, with the tongs, insert the handle of the pot into the hook. Each of the two employés held one end of the bar, and appellee was standing across the same close to the center of it. Appellee then put aside the tongs and took hold of the iron bar for the purpose of steadying same, and, together with the other two employés, raised the pot of metal until the top of it was above the floor level and entirely clear of the oven. “That, in order to release himself from the position in which he then stood, he was compelled to and did shift his foot to the side of the top of the furnace next to the iron grating hereinabove described, and in so doing his foot accidentally, and without any intention on the part of plaintiff so to do, slipped into the aperture or opening between the furnace and said grating. *** That, as a direct and proximate result of his foot so entering into said aperture, and the negligence of the defendant in so leaving the same open, plaintiff lost his balance and fell with great force upon said iron grating upon his side and shoulder,” and received his injuries described.

[1] Appellant's learned counsel argue very earnestly and ably that the amended complaint in this action is obnoxious to a demurrer. In point 1, under “Points and Authorities,” and in the argument in support thereof, it is clearly shown that the complaint is not good as a common-law action inasmuch as it fails to allege that appellee did not at and prior to the accident have full knowledge of the condition complained of, and full appreciation of any danger there might be in working at the place where he sustained the injury complained of. This position is not controverted by appellee's counsel; but it is insisted that the complaint is drawn under the Employers' Liability Act of March 2, 1911 (Acts 1911, pp. 145, 147).

[2] Under points 2 and 3 appellant's counsel presents the question that the complaint is not sufficient under the act of 1911, supra. It is correctly stated under point 2, with authority to support it, that the act of 1911, being in derogation of the common law, must be strictly construed; that, if the complaint be drawn under the provisions of said act, its allegations must affirmatively show facts within its terms; and that the court should not be required “to dig out from the averments of the complaint its theory.”

[3] With respect to this contention, we think it is clearly shown that the complaint was rightly construed by the court to be drawn within the provisions of the act of 1911, supra. Section 1 of said act contains the following provision: “That any person, firm or corporation while engaged in business, trade or commerce within this state, and employing *** five or more persons shall be liable and respond in damages to any person suffering injury while in the employ of such *** corporation *** where such injury or death resulted in whole or in part from the negligence of such employer or *** its *** agents, servants, employés or officers, or by reason of any defect, mismanagement or insufficiency, due to *** its *** carelessness, negligence, fault or omission of duty.” Section 3 provides: “Such employé shall not be held to have assumed the risk of any defect in the place of work furnished to such employé,” etc.

[4][5] The complaint contains the essential allegations that appellant is a corporation engaged in business within this state, employing more than 50 persons, therefore more than 5 persons. It contains the allegation that appellee was injured while in the employ of the corporation, and that said injury was due to the carelessness, negligence, fault, or omission of duty of appellant. Since the assumption of risk is abolished by the act as shown by the above quotation, and as held by the Supreme Court in the case of Vandalia R. Co. v. Stilwell, 104 N. E. 289, we think the demurrer to the complaint was rightly overruled upon this point. It was not necessary to refer specifically to the act itself by title and page. The court takes judicial cognizance of the statutes of the state. If the allegations of the complaint bring it within the terms of ...