American Carbon Co. v. Jackson

• Decision Date: 28 March 1900
• Citation: 56 N.E. 862,24 Ind.App. 390
• Parties: AMERICAN CARBON CO. v. JACKSON.
• Court: Indiana Appellate Court

24 Ind.App. 390

56 N.E. 862

AMERICAN CARBON CO.

v.JACKSON.

Appellate Court of Indiana.

March 28, 1900.

Appeal from circuit court, Hamilton county; John F. Neal, Judge.

Action by Vinton Jackson against the American Carbon Company for injuries. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Kane & Kane, for appellant. Stephenson, Shirts & Fertig, for appellee.

ROBINSON, J.

The action of the circuit court denying an application to remove the cause to the United States circuit court can be reviewed in this court only when the ruling of the court and the application are shown by a bill of exceptions, or when made a part of the record by order of court. Where the decision itself and the ground of objection are entered on the record, a party may except by having an exception noted at the end of the decision. Burns' Rev. St. 1894, § 640 (Horner's Rev. St. 1897, § 628). But the decision thus excepted to must be a part of the legal record. The statute (Burns' Rev. St. 1894, § 662; Horner's Rev. St. 1897, § 650) has indicated what is meant by the legal record by providing that all proper entries made by the clerk, and all papers pertaining to a cause, and filed therein (except a summons for the defendant, where all the persons named in it have appeared to the action, and summonses for witnesses, depositions, and other papers used as mere evidence), are to be deemed parts of the record. See Ewbank, Ind. App. Proc. § 25; Elliott, App. Proc. § 202. Section 662, supra, further provides that a transcript of motions, affidavits, and other papers, when they relate to collateral matters, and depositions and papers filed as mere evidence, shall not be certified, unless made a part of the record by exception or order of court. Ewbank, Ind. App. Proc. § 116; Elliott, App. Proc. § 191. A motion to remove a cause to the United States court relates clearly to a collateral matter. It is an issue taken upon a matter aside from the merits of the case. The trial court's action, denying an application for a change of venue, must be presented for review by a bill of exceptions, and we know of no sufficient reason for denying the application of the same rule in a case like that at bar. Holland v. State, 131 Ind. 568, 31 N. E. 359.

Appellee sued for damages for personal injuries alleged to have been sustained by him while in appellant's service. Verdict and judgment for appellee. A reversal is asked upon the ground, among others, that the evidence is insufficient to sustain the verdict. Section 7083, Burns' Rev. St. 1894, makes a corporation liable for damages for personal injury suffered by an employé, he being in the exercise of due care and diligence-First, when the injury is suffered by reason of any defect in the condition of ways, works, plant, tools, and machinery connected with, or used in the business of, such corporation, when such defect was the result of the corporation's negligence, or some person intrusted by it with the duty of keeping such way, works, plant, tools, or machinery in proper condition; second, where the injury resulted from the negligence of any person in the service of the corporation to whose order or direction the injured employé at the time of the injury was bound to conform and did conform. This action, as stated in appellee's brief, is based upon “the failure of the appellant to furnish appellee with suitable means of access to the work which he was required to do, and giving him directions to do a particular act with which his superior knew he was unfamiliar, and thus exposing him to unnecessary perils.” Appellee testified: That he was 23 years old. Worked in appellant's mill from December 12, 1894, till injured, July 24th following. That Ora Kinnaman was foreman, and had charge of the employés. For a week or a week and a half before the accident appellee had charge of oiling the mill. On the morning of the accident, after he finished oiling, as he thought, he met Kinnaman. “Well, just after I got through I finished up upstairs. He wanted to know if I was done. I told him I was. He then spoke about this tightening. He says, ‘Did you oil all that belt tightening there, down below?’ I told him, ‘No, that I did not know of it; I did not know of any.’ I was upstairs, and he told me. I told him I did not know anything about the tightener. I asked him where it was, and he told me, and I says, ‘How will a fellow get to it?’ He says, ‘Take the ladder you have been using, and place it against the conveyor, if you can reach it.”’ He further testified that after this conversation with the foreman he went below with the ladder he had been using, placed it where he thought would be the proper place to get up, off a short distance to one side of the bearing, carrying with him a lighted torch to find the oil holes. Stepped from the ladder onto the conveyor, from which he fell. On cross-examination, he testified that before he started to get up he could see the ladder he had was too short; that it would not reach. When he got to the top, he could see it was not long enough from the place where he put it. He knew the ladder was not long enough to reach the bearing without stepping on some other object. He could see that. He saw and knew he was not close enough before he stepped on the conveyor “Q. You also knew that it was a...