Davis v. Mercer Lumber Company
| Decision Date | 28 March 1905 |
| Docket Number | 20,288 |
| Parties | Davis v. Mercer Lumber Company |
| Court | Indiana Supreme Court |
From Blackford Circuit Court; Edwin C. Vaughn, Judge.
Action by Walter M. Davis against the Mercer Lumber Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.
Reversed.
Sydney W. Cantwell and Luther B. Simmons, for appellant.
J. A Hindman and Blacklidge, Shirley & Wolf, for appellee.
Appellant, while at work in the planing-mill of appellee, was injured by a circular saw by reason of the alleged negligence of appellee in not guarding said saw, as provided by § 7087i Burns 1901, Acts 1899, p. 231, § 9. Answer, a general denial. There was a trial by jury, and at the close of the evidence the court, on motion of appellee, and over the objections and exceptions of appellant, directed a return of a verdict in favor of the appellee. Motion for a new trial, assigning as a reason therefor this ruling of the court, was denied, and judgment was rendered against appellant for costs.
The principal question presented is whether, under the evidence, a verdict should have been directed. At the very threshold of this question we are confronted with the contentions of counsel for appellee that the evidence is not in the record. Since the filing of appellee's brief, however, the record appears to have been corrected by certiorari, and the transcript now discloses that it contains the original bill of exceptions, embracing the evidence certified up by the clerk of the lower court at the express request of appellant. This, under § 638a Burns 1901, Acts 1897, p. 244, is sufficient to make the original bill a part of the transcript, and there is no longer in this respect any grounds for appellee's objections.
Upon overruling appellant's motion for a new trial the court granted 120 days to file "a bill of exceptions." Two bills appear to have been filed within the time prescribed--number one, which embraces the evidence, and number two, which exhibits the ruling of the court in directing the verdict with appellant's exceptions thereto. Counsel for appellee argue that the filing of the latter bill was unauthorized, and therefore it is not a part of the record, for the reason that the leave granted by the court to file "a bill of exceptions" did not include two separate bills, but must be limited to the filing of a single bill. To place such a construction on the leave granted by the trial court to file a "bill of exceptions" would be very narrow and technical. Of course, if the court had granted appellant leave to file within the prescribed time "all bills of exceptions," there would be no room for argument, but certainly it would be unreasonable to hold that by the leave granted it was intended to require appellant to exhibit by a single bill of exceptions all of the rulings of the court of which he complained. The contention of appellee on this point is decided adversely to it in the case of Wagner v. Weyhe (1905), ante, 177, and cases there cited.
Appellee insists that, even if it can be held that bill of exceptions number two is properly in the record, it is of no avail, because it contains no instruction given by the court to the jury to return a verdict in favor of appellee. It is argued that the bill in question merely shows a conclusion to the effect that the court charged the jury to find for the defendant, without setting forth the instruction given. The bill, however, discloses that at the close of the evidence in the cause the defendant filed a motion, that the court instruct the jury to return a verdict in its favor, which motion the court sustained, and accordingly directed the jury to return the following verdict: "We, the jury, find for the defendant." With this direction the jury complied, and was immediately discharged by the court from further consideration of the cause. The ruling of the court in directing the verdict and the exceptions taken by appellant are fully and properly exhibited by the bill in controversy. That the action of the court under the circumstances is sufficiently disclosed to present the question involved in this appeal is certainly evident. Directing a verdict in a cause is not in the sense or nature of an instruction advising the jury in respect to matters of law, by which they are to be governed in considering the case, but, on the contrary, it is a peremptory order or direction by the court to the jury to return the particular verdict as directed. Any order or direction by the court to that effect, if properly disclosed by the record, is sufficient to present such ruling on appeal to this court.
Appellant was the only witness who testified in regard to the manner in which the accident occurred. His evidence alone discloses substantially the following facts: On and for some time prior to said accident appellee, an incorporated company, was engaged in operating a lumber yard and planing-mill at Hartford City, Indiana. Ripsaws were used in its mill for ripping boards and other lumber. It appears that these saws were set in what is known as saw-tables, at which the employes of appellee (appellant among the number) were required to work in ripping boards and lumber by means of these saws. Sometime about the middle of May, 1900, appellant was employed by appellee to work in its planing-mill. A part of his employment was to work at the saw-tables and operate the saws in ripping or cutting lumber. He was to perform such other work in connection with the planing-mill and lumber yard as he might be directed to do by appellee's foreman. He continued to work for appellee from the time he was first employed until the 30th or 31st day of July, 1900. The saw-table at which he worked contained a slot which was about ten or twelve inches from the west side of the table as the operator faced the table. The saw protruded about four or five inches above the top of the table. The latter was so arranged that it could be adjusted by being either raised or lowered. The ripsaw, however, was stationary, the axle thereof being under the table. The distance of the saw-teeth above the table depended upon the distance that the table was either raised or lowered. There was a gauge on the right side of the saw used to regulate the width of the piece of lumber intended to be ripped. In ripping boards it was necessary for the operator to walk to and from the saw-table, holding the board or lumber which was to be ripped between his hands. In pushing the board into the saw, the right arm of the operator frequently and necessarily would pass over the top of the saw and sometimes close thereto. While a board was being pushed through the saw, the operator had to stand at the rear end of the board and place his thumbs on the ends thereof. In pushing the board against the saw his thumbs would pass on either side of the saw, and at such time his right hand and arm would necessarily come close to the saw. On the 30th or 31st of July, 1900, appellant, while in the service of appellee, as aforesaid, was engaged in the line of his duty in operating one of the saw-tables. The table had been so adjusted that the ripsaw was runing about ----- inches above the top of the table. This saw was wholly unguarded, had no shield or protection of any kind whatever to prevent appellant's arm from coming in contact with the teeth thereof. Appellee had wholly failed to guard the saw as required by the statute. While engaged in ripping a board at this table on the occasion in question, in like manner as he had previously done during the period of his employment, and while operating the saw as he had formerly done, and in a manner as it was necessary for him to do, his right arm below the elbow came in contact with the teeth of the ripsaw, and his arm and hand were thereby severely cut, lacerated and permanently injured, the bone of the arm being split. At the time of the accident he was engaged in pushing a yellow pine board into and through the saw. It appears that this board required hard pushing on the part of appellant in order to push it into and through the saw. On the witness-stand appellant was unable to state just how it happened that his arm came in contact with the saw. He could not positively say whether in pushing the board into and through the saw a soft place was struck which caused the board to be pushed into the saw more rapidly than usual. He could not state whether, while pushing the board, he slipped on the sawdust which had accumulated around the table and over which he had to walk to and fro in pushing and handling the board. It is shown that at the time of the accident he was operating the saw as he previously had done during the period of his employment. It was necessary in operating the saw at the time in question for his right arm to pass over and close to the unguarded teeth of the saw. He knew that the saw was unguarded at the time he was injured, and that it had been in that condition during the term of his employment.
In giving an account of the accident, appellant on the witness-stand, among other things, testified: There is evidence in the case going to show that the sawdust from the lumber that was ripped by the saw would roll out from under the saw-table, and that quite a quantity thereof had accumulated around the table at which appellant...
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