Evansville Metal Bed Co. v. Loge
| Citation | 85 N.E. 979,42 Ind.App. 461 |
| Decision Date | 30 October 1908 |
| Docket Number | 6,443 |
| Parties | EVANSVILLE METAL BED COMPANY v. LOGE |
| Court | Court of Appeals of Indiana |
From Posey Circuit Court; O. M. Welborn, Judge.
Action by Peter Loge against the Evansville Metal Bed Company. From a judgment on a verdict for plaintiff for $ 800, defendant appeals.
Reversed.
Elmer E. Stevenson, John E. Iglehart, Edwin Taylor, Eugene H Iglehart and George D. Heilman, for appellant.
H. M Logsdon, A. J. Veneman and G. V. Menzies, for appellee.
The appellee sued the appellant in the court below to recover damages for personal injuries alleged to have been sustained by him while in appellant's service, through the negligence of appellant. The cause was put at issue, a jury trial had, resulting in a verdict in appellee's favor. Appellant's motion for a new trial was overruled, and judgment rendered on the verdict. The cause originated in the Superior Court of Vanderburgh County. On motion of the appellee the venue was changed to the Gibson Circuit Court and the venue changed from there to the Posey Circuit Court under the following agreement:
"For the reason that the defendant is unable to go to trial in such cause on April 25, 1906, the day fixed for the trial thereof in said court, and at the request of the defendant, the parties hereto mutually agree that the venue of said cause may be changed from Gibson county to Posey county," etc.
In the Posey Circuit Court the appellant, at the proper time, made application for a change of venue from Posey county, and filed in support of the application an affidavit in due form, setting forth a statutory ground for such change. This application was refused. The overruling of this application and appellant's motion for a new trial are the only errors assigned and urged in appellant's brief as grounds for a reversal of the judgment. We will consider these in their order.
It is true, as insisted by appellant, that the trial of causes by an unbiased tribunal is a matter of the highest concern to the law, and that to compel a party litigant to submit the decision of his cause to a prejudiced tribunal is a gross invasion of his rights.
That justice shall be administered speedily and without delay is also a matter of such high concern to the law as to find a place among the rights guaranteed the citizen in the Constitution of the State. To insure to parties litigant an unbiased tribunal in which to try their cases the law gives to each party the right to challenge jurors from the panel for any cause that might possibly bias their minds in favor of or against either party, and adds to this the right to challenge without cause three jurors, and, in order that the party may intelligently exercise his right of challenge, each juror is subjected to an examination on his voir dire of almost boundless limits, and to these is also added the right to a change of venue from the county in which the case is pending, upon the filing of an affidavit of a party showing undue influence of his opponent over the citizens of the county, or of local prejudice against himself. On the other hand, to prevent the abuse of this privilege and to insure the speedy administration of justice, the legislature wisely provided that but one change of venue should be granted to the same party. As shown by the record, the change of venue from Gibson county was had at the request of the appellant. Its right in this respect was thereby exhausted. The fact that the change was made without the formality of the filing of an affidavit, as required by the statute, and upon the agreement of the appellee, does not alter the case. It was nevertheless made upon the appellant's application, appellee merely consenting. No error was committed in refusing the second application.
The grounds of appellant's motion for a new trial pressed upon our consideration are that the evidence is insufficient to sustain the verdict, and that the court erred in giving certain instructions.
The appellant was engaged in the manufacture of metal bedsteads, and used gas-pipe for the bedposts, moulding a foot on each post. In doing this work, at the time appellee was injured, it was using iron moulds, called chills, composed of two pieces, one firmly attached to a foot rack, the other movable and attached to the fixed piece by a hinge on one side and a latch on the other. A piece of tubing intended for a post was put in a chill, molten iron poured into the chill, a foot moulded on, the mould opened by unlatching the movable piece and the post removed.
On the occasion of his injury the appellee was serving as a pourer, carrying the molten iron from a retort and pouring it into the moulds. Another employe of appellant had charge of the chills, putting the posts in, and, when the feet were moulded, opening the chills, removing the moulded posts and putting in other tubes. The work began about 7 o'clock a. m., and at 9 o'clock a. m. an intermission of fifteen minutes was allowed the workmen for rest and refreshments. While the work was in progress, and before the intermission, the man in charge of the chills discovered that the latch on the movable part of one of them was broken. He removed it from the fixed part, took it to the repair room, where it was repaired, and it was replaced while the pourers were at lunch, and without notice to them of the circumstance. Immediately after resuming work after lunch, when appellee was in the act of filing one of the moulds with the molten iron, some of it sputtered out of the mould, back into his face and eyes, and inflicted the injury complained of. It appears that the appellee and others engaged in the same work were furnished by the appellant with goggles, to be worn over their eyes to protect them from accidents of the kind that happened to appellee. It is the theory of appellee's case that after the moulds became thoroughly heated there was no danger from sputtering iron when poured into the mould, and that the use of the goggles thereafter could be safely dispensed with, that after the moulds had thus become heated the man in charge of them removed the defective piece, cooled it off in water, and placed it back on the rack; that it was thus rendered dangerous to be used without having the eyes covered with goggles, and that it was the duty of the man in charge of the moulds or chills to notify appellee of the fact that he had taken out the piece of the chill and cooled it off; that he failed to do so, and that in the matter of removing the chill and replacing it, without notice to appellee, he was a vice-principal; that, after the mould was thus replaced, the appellee, without notice of the presence of the cold chill, undertook to pour the molten iron into it, without using the goggles over his eyes, when, on account of its being cold, the iron sputtered back and injured him; that had he been notified of the condition of the chill he would have protected himself by using the goggles.
It was essential to make out his case that the appellee prove by competent evidence: (1) That the condition of the chill removed from the rack and repaired was changed; that is, that it was cooled off by the party who removed it, either with water, or by some other means, and then replaced; (2) that the appellee was engaged in pouring molten metal in this particular chill at the time he was injured; (3) that the changed condition of the chill was the cause of the molten metal's flying into appellee's eyes. None o...
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