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same as section 13 of our act, the court, con- tion shall pay to such employés any compensatinuing, said: tion which would be payable to them under this act if the independent or sub-contractors were subscribers."

"It will readily be seen that the provisions of this section of the Workmen's Compensation Act are strictly for the benefit of the employer and employé. It in no way protects a third person from suit whose negligence may have contributed to the injury or death of the employé. There is nothing in said section which abridges or limits the employé's common-law right of action against such third person."

[3] Under this section of the statute, White, as one of "such employés" was entitled to compensation from the defendant who was a "subscriber," and who as an employer was primarily liable to the plaintiff for compensation. The statute practically compelled the defendant to carry insurance for the ben

And, after calling attention to the Washington act which abolishes the right to pros-efit of the plaintiff, who was there held to be ecute civil actions for personal injuries, said: "Our act nowhere undertakes to deny or abridge the employé's common-law right of action against a third person whose negligence may be the sole or a contributing cause of his injury. There is therefore no reason why plaintiff cannot maintain her suit against defendant."

City of Chicago v. Industrial Com., 295 Ill. 291, 129 N. E. 112, is not in point. Section 31 of the Compensation Act of Illinois requires employers to pay compensation to their own employés and to the employers of uninsured contractors engaged by them.

Without entering into any further review of the authorities, we hold there was no error in overruling the demurrer to the complaint.

an employé of the Fuller Company, and, not having given notice that he claimed his right of action at common law for damages, his only rights as against the defendant arose under the Compensation Act. White had the same rights as the immediate employés of the defendant. There is nothing in the Workmen's Compensation Act of Indiana similar to said section 17 of the Massachusetts act.

White under the Massachusetts act was made White, as an employé, and the general conan employé of the general contractor. Since

tractor, as employer, were both subject to

the Compensation Act, their rights and lia

bilities were measured by that act, which expressly provided that an employé of a “subscriber" waived his right of action at common law to recover damages for personal injuries, unless he gave his employer written notice that he claimed such rights. No other conclusion could have been reached in that

case than the one that was reached. As has heretofore been shown, section 6 of our Compensation Act has to do only with the employé and his employer. It does not affect any party other than the employé and his im

Appellant next contends that the court erred in sustaining the demurrer to the second paragraph of answer. In support of this contention appellant calls attention to the fact, as alleged in this answer, that appellee's employer and appellant were both carrying compensation insurance, were subject to the Compensation Act, and that ap-mediate employer. pellee was also subject to the act, and insists that appellant was only liable for compensation under section 14, supra,

In White v. George A. Fuller Co., 226 Mass. 1, 114 N. E. 829, George A. Fuller Company had a contract for the erection of a building. White was an employé of a

subcontractor doing work under a contract with the Fuller Company, and, being injured through the negligence of one of the employés of the Fuller Company, he brought an action at law against the latter for damages. The defendant carried compensation insurance, but the subcontractor by whom the plaintiff was employed was not insured. Part 3, § 17, of the Massachusetts Workmen's Compensation Act (Laws 1911, c. 751), provides as follows:

"If a subscriber enters into a contract, written or oral, with an independent contractor to do such subscriber's work, or if such a contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contract with the subscriber, and the association would, if such work were executed by employees immediately employed by the subscriber, be liable to pay compensation under this act to those employés, the associa

Section 13 preserves the common-law rights of an employé to prosecute an action for damages against any one other than his employer who negligently injures him, and also gives the employer a right under certain conditions to prosecute an action against such third party.

Section 14, as originally enacted, Acts 1915, p. 106, like section 17 of the Massachusetts act, made a contractor liable for compensation to any employé injured while in the employ of any one of his subcontractors and engaged upon the subject-matter of the contract to the same extent as the immediate employer. It, like the Massachusetts statute, compelled every contractor to carry insurance for the benefit of the employés of the subcontractors, and, in case the contractor was compelled to pay compensation under that section, he was given the right to recover the amount so paid from the immediate employer of the injured employé. This section, however, was materially changed in 1919 (Acts 1919, p. 159). As amended it does not require a person contracting for the performance of work to carry insurance for the benefit of an employé not his own; nor does

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it require a contractor, contracting with a the shop of the Washer Company to do some subcontractor, to carry such insurance. Its work, and while doing the work was seriouspurpose is to relieve such persons from the ly injured by reason of the negligence of the necessity of carrying insurance by exacting Washer Company. Both the Andrae Comthe certificate showing that the person em- pany and the Washer Company were working ployed to do the work has complied with the under the Workmen's Compensation Act. law. Its purpose is to relieve such person The defendant there, as here, contended that, as well as a contractor from any possible since it and the plaintiff's employer were liability for compensation to the employés both subject to the provisions of the statute, of any one employed by them to do any work. it was not liable to an action at law. The It does not purport to take away the right of court in disposing of this contention said: an employé who has been injured through the neglect of a person other than his employer to maintain an action for damages a right expressly preserved by section 13. It does not, in any event, make an employé of a contractor or of a subcontractor an em

ployé of any other person, as does the Massachusetts act. The liability, if any, is voluntarily assumed by the person who fails to exact the certificate showing the employer has complied with the law. This section applies alike to every person contracting for the performance of work without reference to whether the person, so contracting is, or is not, carrying compensation insurance and subject to the Workmen's Compensation Act, while section 17 of the Massachusetts Act is limited to a "subscriber" who is carrying compensation insurance. It is very probable that the amendment of section 14 of our act in 1919 was brought about by reason of the decision in White v. George A. Fuller Co., supra. As was said in King v. Viscoloid Co., 219 Mass. 420, 106 N. E. 988, Ann. Cas. 1916D, 1170:

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"The claim cannot be sustained. The purpose and effect of the Workmen's Compensation Act is to control and regulate the relations between an employer and his employés. As between them the remedies there provided are exclusive when both are under the act at the The law does not at

time of the accident.

tempt in any way to abridge the remedies which an employé of one person may have at law against a third person for a tort which such third person commits against him,"

except as provided in a particular section of the statute which was not applicable there nor in the instant case.

See, also, Goldsmith v. Payne, supra; Silvia v. Scotten (Del. Sup.) 122 A. 513; Muncaster v. Graham Ice Co., 103 Neb. 379, 172 N. W. 52.

[4] The right of an injured employé to proceed under section 14 to collect compensation from his employer and the party failing to exact the certificate therein mentioned is not exclusive. Ohio Traction v. Washington, 6 Ohio App. 273.

[5] Nowhere in the statute is there any attempt to regulate or alter the rights and remedies of an employé against a person not his employer. There is nothing in the statute to

indicate that the Legislature intended that the right of an injured employé should be affected by reason of the fact that the negligent third party was also working under the Compensation Act. The fact that appellant did not exact the certificate mentioned in section 14 in no wise affected the right of appellee to prosecute his action at law for damages.

It is not to be presumed that the Legislature intended that a person by a deliberate refusal or failure to exact the certificate from the Industrial Board could thereby destroy the right of an employé of another to prosecute an action at law for damages, and in a case like the one now before us limit the injured employé to a claim for compensation and require him to collect such compensation from his employer or his insurance carrier, and thus free the negligent third party so failing and refusing to exact the certificate from all liability, in case the compensation could be collected from the immediate employer or his insurance carrier. If a third party could thus avoid an action at law for damages, there would be no inducement for exacting the certificate. Indeed there would be an inducement not to exact the certificate. Decisions in states having a statute like Massachusetts, Illinois, Montana, and Washington are of no controlling influence in this state on the question now under considera-sisted in taking out wooden guides and retion.

In Smale v. Wrought Washer Mfg. Co., 160 Wis. 331, 151 N. W. 803, the plaintiff, an employé of the Andrae Company, was sent to

There was no error in sustaining the demurrer to the second paragraph of answer. [6] Appellant next contends that there is no evidence to sustain a finding that it was negligent, and that the doctrine res ipsa loquitur has no application to the situation here involved, because appellee was not a passenger on the elevator, but simply employed to work with certain materials being used in repairing the elevator. Appellee was an employé of Mr. Wuelfing who had been employed by appellant to make certain repairs in its icehouse. Part of the repairs had been made, when appellee was directed to do some work on a hoist or elevator. This work con

placing them with new material furnished by appellant. When appellee started to work on the elevator appellant's yardman and manager showed him what he was to do, and

told him appellant would fix a scaffold on which he could do the work, but later appellee was informed he could not use a scaffold, because it would interfere with getting in and out with ice, and that he would have to work off the top of the elevator. The elevator was raised by appellant's servant far enough to allow the removal of the guides in the lower 12 feet of the shaft. New guides were then placed in position, after which appellant lowered the elevator in order to remove the parts of the old guides immediately above those which had been removed. One of appellant's servants was present and assisted appellee in the work. Just where this servant was at the time of the accident is not disclosed. The inference is that he was not in a position where he could control the elevator. Appellee, according to his testimony, was standing on a piece of timber 3 or 4 feet above the floor of the elevator, and while he was prying the guides loose a chain which was fastened to the timber on which he was standing, and which was used to hoist or raise the elevator, broke, causing the elevator to drop to the bottom of the shaft, and severely injuring appellee. The elevator was raised and lowered by compressed air, and was operated by wires leading to levers. Appellant's manager or yardman was assisting appellee in doing the work. He had charge of the elevator, and raised or lowered it as was necessary. He testified that appellee was standing on the floor or platform of the elevator, and when one of the pieces of the guides was pried loose it fell and struck the wire leading to the lever that raised the elevator; that this started the elevator up; the elevator not being over far enough as it as cended, it caught against or under a door in the icehouse, and that this prevented the elevator going up any further, and caused the chain to break.

The chain in question had been used in hoisting the elevator for several weeks. The loads of ice hoisted on the elevator during that time weighed about 1,600 pounds. The chain was not examined before or after the accident to see whether there were any weak or defective links. The evidence fails to show its strength other than it had been used as stated. Under the circumstances, we are of the opinion that the doctrine res ipsa loquitur applies, and that the burden was on appellant to explain the cause of the elevator's fall. The testimony of appellee and of the yardman did not coincide as to the manner in which the elevator fell. The yardman testified that the elevator started up and struck the door above, and that this caused the chain to break. Appellee says that the elevator suddenly dropped, and says nothing about it starting upward and striking the door before falling. The jury evidently accepted the testimony of appellee as being correct, and refused to accept or believe the testimony of appellant's witness as to how the accident happened.

[7] Appellant says that the giving of instruction 15 constitutes reversible error "because it is a binding instruction to find for the plaintiff if certain facts are proved, and the question of contributory negligence is entirely left out." It is true nothing is said in this instruction about contributory negligence, but the court did in a number of instructions tell the jury there could be no recovery if the evidence showed appellee was guilty of contributory negligence. Appellant has failed to point to any evidence to sustain a finding that appellee was guilty of con. tributory negligence. The instructions must be considered as a whole in connection with evidence, and when this is done it is clear appellant was not harmed by the giving of this instruction.

The elevator was an instrumentality fur- Complaint is also made of instructions 17 nished by appellant for the use of appellee and 18 relating to the duty of a party to furin doing the work, and was under the control nish a safe place to work and the rule res of appellant. Appellant insists there is no ipsa loquitur. There was no error in the evidence showing it was guilty of any neg- giving of either of these instructions. The ligence, and that the burden was on appel-eighth instruction tendered by appellant was lee to prove that the elevator fell by reason to the effect that appellee's only remedy was of some negligence on the part of appellant. Appellee contends that, since the elevator was furnished by appellant and was under its control, the doctrine of res ipsa loquitur applies.

compensation under the Workmen's Compensation Act, and that he was not entitled to recover anything in this case. There was error in refusing to give this instruction. Judgment affirmed.

(146 N.E.)

TOWN OF OXFORD v. SCOTT. (No. 12029.) (Appellate Court of Indiana, Division No. 2. Feb. 26, 1925.)

1. Electricity 19(5)-Evidence held to sustain finding of negligence, without invoking doctrine of res ipsa loquitur.

| Oxford, Ind., and had been so doing for many years. Appellee's decedent, with his family, lived in said town in his own home, which had been wired for lighting purposes before decedent occupied it. In 1917, he erected a garage on his premises, in which he installed electric wires and fixtures, which were connected with the municipal system through Evidence of city's careless and inefficient his dwelling. Appellant's lighting system, maintenance of high voltage electric wires in which was the only high-voltage electrical manner that dangerous current escaped to secondary wiring system, causing death of plain-system in the town, consisted of a generattiff's intestate, held sufficient to sustain finding ing plant, a primary circuit, running all over that negligence of defendant was proximate the town, carrying about 2,300 volts, the cause of injury, without invoking doctrine of res ipsa loquitur, which was, nevertheless, applicable.

2. Trial 296 (3)-Instruction as to degree of care required of city, maintaining lighting plant, held not reversible error.

street lighting or arc system, carrying about 500 or 600 volts, and several secondary circuits, in which the current, by means of transformers, was reduced to 110 volts. The transformer that reduced the current on the secondary circuit that supplied the decedent

Instruction that care required of municipal-Scott's residence was just across the street ity, maintaining and operating electric lighting plant, was "measured by the hazard and danger of the enterprise." though not commendable, held not reversible error, in view of remainder of instruction and obviously correct result reached in cause.

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from his residence. This circuit supplied about 15 customers, including decedent. It was not grounded. This would have had the effect to take off any extra charge of electricity. The wires were sagging, and in some places in close proximity; at one place the

Appeal from Circuit Court, Benton County; arc and secondary wires were as close as 5 B. B. Berry, Judge.

Action by Dora M. Scott, administratrix of the estate of Emory H. Scott, deceased, against the Town of Oxford. Judgment for plaintiff, and defendant appeals. Affirmed.

Gaylord & Sells, of La Fayette, for appel

lant.

inches.

There

Appellant's superintendent testified that at this place it was possible for the lines to come in contact, but not probable. were shade trees along the street, and these wires in some places were fastened through the trees. In numerous places the wires had burned into the trees. On the day of the

Edmon G. Hall and Fraser & Isham, all of accident it had rained all day. Contact beFowler, for appellee.

NICHOLS, J. Action by appellee against appellant to recover damages for loss sustained by her and her minor children by the wrongful death of her husband and father of her children. To the complaint there was an answer in general denial. The cause was submitted to the jury for trial, which returned a general verdict in favor of appellee for $6,000, upon which, after appellant's motion for a new trial was overruled, judgment was rendered.

The only error relied upon by appellant for reversal is the action of the court in overruling its motion for a new trial, the reasons for which were the insufficiency of the evidence to sustain the verdict, under which reason appellant contends that there is no evidence in the record tending to establish its negligence; that the verdict is contrary to law; and error of the court in giving each of certain instructions, and in refusing to give each of others tendered by appellant.

The substantial facts as appear by the evidence are that appellant, a municipal corporation, was on October 6, 1922, operating its own electric lighting plant in the town of

tween the wires was more frequent on rainy days. Fires were seen in trees just across the street from decedent's home, on the night of the accident. It was common for the street lights to go out, and for fuses to burn out. The insulation was off the wires in numerous places. One superintendent had quit because the town would not furnish material with which to operate the plant. Another quit because he wanted to hire an extra man, experienced in operating a plant, and the board refused to hire one. The superintendent in charge at the time of the accident was paid $330 per month, with which he hired two men, beside himself. They worked 10 hours a day. He had no men to put up wires, and had to do the best he could.

There were three inside switches or buttons in decedent's garage. The fixtures therein were in the same condition on the day of decedent's death that they had been at all times since they were installed in 1917. The wiring system in the garage was in good condition, and the wires were fully insulated, but after the injury it was discovered that the insulation surrounding the mechanism of the switches in the garage, where the shocks were received, had been burned through and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
146 N.E.-53

perforated by an electrical current. An ex-, appellant in the insulation and inspection of pert electrician testified that in his opinion its plant. the ordinary current of 110 volts would not be sufficient to make such a puncture.

Twice during the day before the time of the injury the lights had been turned on without any shock being received whatever. At these two times the arc lights were not on, but in the evening, and when it was dark, decedent's nephew attempted to turn on the lights in the garage, and received a severe electric shock, which knocked him down, badly burned his fingers and his feet, and burned a hole through the sole of each shoe. Flashes of fire were seen to fly out of his feet. Upon being informed of his nephew's injury, Mr. Scott went to the garage to investigate, but as his fingers came in contact with the switch, other than the one from which his nephew had received his shock, he received a severe electrical shock, which resulted in his death. At this time the arc lights had been turned on, but soon after the injury the manager and superintendent of appellant's plant, being informed of the injury, ordered the street lights to be turned off, which was done. During the time the street lights were on, other persons, whose light systems were attached to the same secondary circuit as the decedent's light system, received electrical shocks of more or less severity while attempting to turn on lights, but after the street lights were turned off there was no trouble with the secondary circuit.

[1] Appellant contends that the doctrine of res ipsa loquitur has no application in this case, while appellee contends that such doctrine, under the circumstances of the case, is applicable. It clearly appears that the shock received by the nephew of the decedent was received at one of the switches in his garage, while the shock which caused the death of appellee's husband was received at another switch in the garage, and at a time when the street or arc lights were burning. It also is undisputed that there was a burned place and puncture or perforation in each of the switches from which the shock was received, and uncontradicted expert evidence to the effect that such puncture was not produced by a voltage of 110 volts, but by a voltage of from not less than 400 to 500 volts. The evidence shows that, aside from this perforation in the insulation of the switches, the lighting system of the garage was in good condition. These facts, coupled with the fact that the current was strong enough to produce flashes of fire from the nephew's feet, as well as from the decedent, makes a

prima facie case of negligence against appellant in permitting a higher voltage of electricity than 110 volts to escape from its wires to the wires in the garage of the decedent. This prima facie case was not met

It is true that appellant's superintendent testified that he inspected the plant on the day before the accident; but this was done along with a primary duty of reading the meters, in which he was engaged at the time, and while walking along on the ground, and the fact that he discovered nothing wrong with the plant, when there is such abundant evidence that the insulation of the wires had peeled off in many places, shows that the inspection was not such as to relieve the appellant of a charge of want of due care in maintaining its plant in a safe condition. In fact, as it seems to the court, it is hardly necessary that appellee should invoke the doctrine of res ipsa loquitur, for the evidence of the careless and inefficient maintenance of the appellant is such as fully to justify the jury in finding that the negligence of appellant in that regard was the proximate cause of the accident which produced the death of appellee's decedent. There are numerous cases where the charge of negligence in handling this dangerous element has been sustained by invoking the doctrine of res ipsa loquitur, among which we cite: City of Decatur v. Eady, 186 Ind. 205, 115 N. E. 577, L. R. A. 1917E, 242; City of Logansport v. Green, 192 Ind. 253, 135 N. E. 657, 658; Indianapolis, etc., Co. v. Dolby, 47 Ind. App. 406, 92 N. E. 739; Ayrshire Coal Co. v. Wilder, 75 Ind. App. 137, 141, 129 N. E. 260; San Juan Light, etc., Co. v. Requena, 224 U. S. 89, 97, 32 S. Ct. 399, 56 L. Ed. 680; Alabama City, etc., v. Appleton, 171 Ala. 324, 54 So. 638, 640, Ann. Cas. 1913A, 1181; City of Thomasville v. Jones, 17 Ga. App. 625, 87 S. E. 923; Turner v. Southern Power Co., 154 N. C. 131, 69 S. E. 767, 32 L. R. A. (N. S.) 848, 852; Western, etc., Co. v. Garner, 87 Ark. 190, 112 S. W. 392, 22 L. R. A. (N. S.) 1183.

[2] Appellant earnestly contends that instruction No. 4, tendered by appellee and giv en by the court, was erroneous, and that there should be a reversal because it was giv en. It instructs the jury:

"That a municipality, such as the town of Oxford, in maintaining and operating a plant for the generation and distribution of electricity for lighting purposes, is held to that degree of conditions and circumstances would exercise in care that ordinarily prudent persons under like the maintenance and operation of a like plant: that is to say, the degree of care is measured by the hazard and danger of the enterprise in which the parties are engaged, and they are held to that degree of care that ordinarily prudent persons would exercise under like conditions and circumstances."

The objectionable feature of the instruction, as seen by appellant, is found in the expression that "the degree of care is meas

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