Levey v. Bigelow

• Decision Date: 23 May 1893
• Docket Number: 599
• Parties: LEVEY ET AL. v. BIGELOW, BY NEXT FRIEND
• Court: Indiana Appellate Court

34 N.E. 128

6 Ind.App. 677

LEVEY ET AL. v. BIGELOW, BY NEXT FRIEND

No. 599

Court of Appeals of Indiana

May 23, 1893

From the Marion Circuit Court.

Judgment reversed, with instruction to grant a new trial.

F Winter and J. B. Elam, for appellants.

P. W Bartholomew and C. E. Averill, for appellee.

OPINION

LOTZ, J.

The appellee sued the appellants to recover damages for personal injuries sustained by him through and by the alleged negligent acts and conduct on the part of appellants. The complaint, after stating the business in which appellants were engaged, and describing the location where it was carried on, then further alleges that appellants operated in their establishment a very large and powerful printing press called the "Babcock Printer." A full description of this machine is given, and it is averred that the removal of a certain heavy iron roller from its place in the press was a work of great hazard, while the belt communicating power to the press was revolving on the loose pulley at the side of the machine; that at the time the appellee received his injury he was a boy about seventeen years of age of immature judgment and experience, and ignorant of, and uninstructed in respect to, the hazard and peril stated; that he was learning the trade of "pressman" in said establishment, by and with the consent and approval of appellants, and under the direction and control of their foreman; that appellee was ordered by the foreman to remove the iron roller aforesaid, so that the same might be repaired; that it was necessary in order to remove the roller to get within the frame of the press; that while he was obeying and carrying out the order of the foreman, and while he was in the exercise of due care, and without any fault or negligence on his part, he received the injuries which resulted in the loss of his leg; that at the time he received such injuries, he was ignorant of the hazard and danger incident to said work, and had never been warned nor instructed in relation thereto; that on account of appellee's youth, inexperience, and immaturity of judgment, he did not, and could not, know how to perform, nor had he been instructed by appellants, nor any one for them, as to the manner of performing such work, so as to avoid the danger; that he had no assistance, and that no one was ordered or directed to assist him; that the belt was not thrown off the pulley, nor was he authorized to throw it off. It is also alleged that the throwing of the belt from the pulley was exclusively under the control and direction of the foreman; and it is further averred, that the appellants, by the exercise of proper care, might have known and did know, that the appellee was of immature judgment and experience, and ignorant of, and uninstructed in respect to, the dangers of the work; that appellant had full knowledge of all the hazards and dangers of the work, but that notwithstanding their full knowledge in the premises, they carelessly and negligently ordered him to perform the work without providing any assistance, and without warning him or instructing him in any respect, and without taking any means to care for his safety. These are the substantial allegations showing the manner of the infliction of the injuries, and the negligence of the appellants.

There was a trial by jury, and a verdict for appellee in the sum of one thousand dollars. The jury also returned answers to certain interrogatories submitted by the appellants A motion for a new trial was filed and overruled, and final judgment followed. The ruling on the motion for a new trial is the only error assigned.

The appellee asserts that the motion for a new trial was never properly presented to the trial court, and for that reason this court should not consider it. The basis for this claim is that the record does not affirmatively show its presentation to the trial court, and that this court will not assume anything not affirmatively shown by the record in order to overthrow the judgment. Cline v. Lindsey, 110 Ind. 337, 11 N.E. 441; Graves v. Duckwall, 103 Ind. 560, 3 N.E. 263. And, further, that the appellee is entitled to everything in the record which may prevent a reversal upon the errors assigned. Martin v. Martin, 74 Ind. 207. It is true that a motion for a new trial must be presented to the court. Filing it with the clerk alone is not sufficient. Emison, Trustee, v. Shepard, Admr., 121 Ind. 184, 22 N.E. 883; Gilbert v. Hall, 115 Ind. 549, 18 N.E. 28.

The record in this case, however, shows that the cause was tried "before the Honorable Edgar A. Brown, sole Judge of the said Marion Circuit Court."

It also further appears that on the 18th day of February, 1891, being the thirty-ninth juridical day of the January term, 1891, the jury returned its verdict into open court. "And afterwards, to wit, on the 26th day of February, 1891, being the forty-sixth juridical day of the January term, 1891, of said court, before the same honorable judge, the following proceedings were had herein, that is to say: Come now the defendants, by their attorneys, and file their motion and written reasons for a new trial, in this cause, in the words and figures following, viz." Then follows, in the record, the action of the court. At the next succeeding March term of the court, this motion was overruled. It is not sufficient to present the motion and written causes to the clerk, and request that the same be placed among the files of his office, but the motion must be brought to the attention and knowledge of the court. The record does not say, in direct terms, that the motion was brought to the notice and knowledge of the court, but it does purport to give the proceedings had in a certain cause in the Marion Circuit Court, and while the Hon. Edgar A. Brown was presiding as judge thereof. This indicates that the court was in actual session at the time. A court has been defined as "a place where justice is judically administered." Coke on Litt. 58; 3 Bl. Comm. 23. This definition, however, has been often criticised as too narrow, being limited by the word place. The prominence of the word place, in this definition, no doubt, arises from the ancient idea that the king was the fountain and dispenser of justice, and wherever he was domiciled was a court or place where justice was dispensed. In modern times, and under our form of government, the judicial power is exercised by means of courts. A court is an instrumentality of government. It is a creation of the law, and, in some respects, it is an imaginary thing that exists only in legal contemplation, very similar to a corporation. A time when, a place where, and the persons by whom judicial functions are to be exercised, are essential to complete the idea of a court. It is in its organized aspect, with all these constituent elements of time, place, and officers, that completes the idea of a court in the general legal acceptation of the term. But a court may exist in legal contemplation, without any officers charged with the duty of administering justice. The officers might all die or resign, and still the legal fiction would continue to exist. The judge of a court, while presiding over the court, is, by common courtesy, called "the court," and the words "the court," and "the judge," or "judges," are frequently used in our statutes as synonymous. Michigan Cent. R. R. Co. v. Northern Ind. R. R. Co., 3 Ind. 239 (245). The record from which we have quoted shows that the sole judge of the court was presiding over the court at the time the motion was filed. We have here all the elements of time, place, officer, and actual exercise of judicial power. It is sufficiently shown that the motion was presented to the court at the term when the trial was had. The facts, as proved on the trial, are substantially as follows:

William H. Levey and Louis H. Levey were partners, carrying on the business of printing, in Indianapolis, Indiana. In May, 1890 the firm had four printing presses, one of which was called a Babcock press, two were called Potter presses, and one a Cincinnati stop press. The Cincinnati press was a small one, and the Potter presses were smaller than the Babcock press. The presses were operated by steam power. There were ten persons, including apprentices, employed in the establishment. The work was in charge of a foreman. On the 22d day of January, 1888, the appellee Isaac Bigelow became an apprentice in this printing establishment. He desired to learn the trade of a pressman. At the time of beginning work for the appellants, the appellee was sixteen years and four months old. Before commencing to work in such establishment, appellee had no knowledge of the printing business or the press. He was placed under the control of the appellants' foreman. He was bright, intelligent, and active, and possessed at least usual physical strength for one of his age. He was injured while working about the Babcock press, on the morning of the 27th of May, 1890. He worked continuously for appellants from the 22d day of January, 1888, to the time of his injury, being a period of two years and four months. He was employed in various ways, and at different parts of the work carried on by appellants. Before the injury, appellee had assisted in taking the Babcock press apart, and in setting it up again in a new location. This Babcock printing press was a machine upon which an employe might be injured, but it was not an especially dangerous machine, nor were its operations and construction difficult to comprehend. The appellee was familiar with its construction and the method of operating it. The Babcock printer was set in an iron frame, was about seven feet high at one end, and lower at the other, about twelve feet long, two feet wide at the front, and wider...