Diezi v. The G. H. Hammond Company
| Decision Date | 10 May 1901 |
| Docket Number | 18,994 |
| Citation | 60 N.E. 353,156 Ind. 583 |
| Parties | Diezi v. The G. H. Hammond Company |
| Court | Indiana Supreme Court |
From the Porter Circuit Court.
Reversed.
M. M Bruce and O. J. Bruce, for appellant.
B. F Ibach and J. G. Ibach, for appellee.
To appellant's complaint for $ 10,000 damages for personal injuries, appellee filed a general denial. At the conclusion of appellant's evidence in chief, appellee unsuccessfully moved the court to direct a verdict for appellee. After appellee's evidence in defense and appellant's in rebuttal had all been introduced, the court instructed the jury to return a verdict for appellee. Over appellant's motion for a new trial, judgment was entered. The only question sought to be presented by appellant is: Was the court's action in directing the verdict erroneous?
Appellee insists that the bill of exceptions containing the evidence is not in the record, because the longhand manuscript was not filed in the clerk's office before it was incorporated in the bill. This cause was tried in November, 1898, and the sufficiency of the bill is therefore to be determined by the act of 1897 (Acts 1897, p. 244). Under that act, the original bill of exceptions containing the evidence may be embraced in the transcript, no matter who prepared the bill for the judge's approval and signature; and, if a shorthand reporter is employed, his longhand manuscript need not be filed in the clerk's office before it is embodied in a bill of exceptions. Minnick v. State, 154 Ind. 379, 56 N.E. 851; Adams v. State, post, 596; Blair Co. v. Rose (Ind. App.), 26 Ind.App. 487, 60 N.E. 10. It is also contended that the evidence can not be considered because matters other than the evidence are included in the bill. It is settled that this does not vitiate the bill so far as the evidence is concerned. Adams v. State, supra; Maynard v. Waidlich, ante, 562; City of New Albany v. Lines, 21 Ind.App. 380, 391, 51 N.E. 346; Chicago, etc., R. Co. v. McCoy, 24 Ind.App. 651, 55 N.E. 869.
The evidence that is favorable to appellant discloses the following state of facts: Appellant, born and raised in Switzerland, arrived in this country in 1894 at the age of nineteen years and came directly to Hammond, Indiana, where he began working for appellee, and continued the greater part of the time until he was injured on March 7, 1898. He was in appellee's service continuously from the latter part of May, 1897, to March 7, 1898. He was a common laborer, of very limited experience. Appellee is a corporation doing business in dressed meats. Sometime after January 1, 1898, and at least one month prior to March 7, 1898, appellee had constructed a sewer from the killing floor of its plant to the Grand Calumet river. Six feet from the killing floor are located two catch-basins through which the new sewer passes in reaching the river. Thirty-three feet from the catch-basins is located a sewer hole (manhole) five feet two inches long, two feet two inches wide and three feet seven inches deep. Shortly after January 1, 1898, appellant was transferred from helping in the press room to skimming and cleaning out the catch-basins connected with the new sewer. Appellant first learned of the sewer hole about four weeks before he was injured, when it was shown to him by one of appellee's foremen. About a week after appellant had learned of the sewer hole he was requested by the superintendent to take the hose and go into the hole and wash it out. The superintendent called the fireman and told him to bring the hose and make everything ready so it could be used to rinse out the sewer. Appellant then went to skim the catch-basins but came back in fifteen or twenty minutes and found everything ready, the hose screwed onto the water-pipe, and a nozzle attached to the other end, and Wright and Bush, laborers who had been sent by Grey, the foreman, present to help appellant clean the sewer. Appellant went into the hole with the hose while Wright and Bush stood outside and held the hose. While they were thus cleaning the sewer Grey came along and informed appellant that that was the right way to do the work and that he must clean it out once a week. The next week appellant requested Grey to have some one help him clean the sewer, but was informed by Grey that he did not need help and that he must do it himself. This time, however, appellant did not clean the sewer as the pipe was bursted. The next time he went to clean the sewer was the following week, March 7, 1898. He attached the hose, took the nozzle, went into the hole, and then requested the fireman to turn on the water. When the water was turned on the hose became unmanageable and jerked away from appellant, and while he was trying to get out of the hole the hose struck him on the knee, dislocating the joint. Appellee maintained its own system of...
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