Pein v. Miznerr

Citation170 Ind. 659,84 N.E. 981
Decision Date26 May 1908
Docket NumberNo. 21,210.,21,210.
PartiesPEIN et al. v. MIZNERR.
CourtIndiana Supreme Court


Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Action by Mary E. Miznerr against George W. Pein and others. Judgment for plaintiff, and defendants appeal. Transferred from Appellate Court, under Burns' Ann. St. 1901, § 1337j, subd. 1. Reversed and remanded.

For opinion in Appellate Court, see 83 N. E. 784.

W. A. Ketcham and J. W. Hutchinson, for appellants. Geo. W. Galvin and Wm. A. Reading, for appellee.


Appellee, a minor, commenced this action in the lower court by her next friend, to recover damages for personal injuries sustained by her while in the employment of appellants in their laundry in the city of Indianapolis. The complaint originally was in two paragraphs, but after the commencement of the trial counsel for appellee dismissed the first paragraph, and the cause was submitted to the jury upon the second, and the verdict returned is based upon that paragraph. It charges: That “the defendant Model Steam Laundry is a corporation duly incorporated and operating under the laws of the state of Indiana. That the defendants Pein and Washburn are the proprietors in charge of said laundry company. That such Model Steam Laundry Company is operated and conducted in the city of Indianapolis for the purpose of general laundry work, and in its operation has machines of divers and sundry make and construction, and such appliances are necessary in the conduct of such business. That on the 14th day of June, 1905, the said defendants were operating such laundry, and in the operation of the same had many men, women, and children employed. That among other of the children employed by said defendant was this plaintiff, a child, at the time, of less than 15 years, who was negligently and carelessly directed to assist in the operation of a machine, commonly known and designated as a ‘mangle,’ or large iron machine which worked by cogs, gearing, rollers set screws and belting, three of such rollers being covered and the other roller being heated to a great heat, unknown to plaintiff, but well known to defendants. That such heated and other rollers, though they could have been readily guarded and made safe, had no hood or other guard, contrary to the laws of the state of Indiana, and were operated in their exposed and unguarded condition, though they might and could have been readily and easily guarded without in any manner interfering with their use or usefulness. That this plaintiff was unacquainted with the construction or perils of such mangle, its different parts, movements, and operations, and knew nothing of the dangers incident to employment in and about such machine, which defendants well knew, or by the exercise of reasonable care could have known. That on said 14th day of June she was directed by those in charge, to whose orders she was bound to conform by virtue of her employment, and did at the time conform, without advice, counsel, instruction, or warning of peril, the need of which was well known to defendants and each of them, or by the exercise of reasonable care could have been known, to assist in tying the strings on the covered rollers, being wholly uninstructed or informed theretofore as to any danger to be apprehended from the rollers or either of them or any part of said mangle. That, at the time, such cogs, gearing, and rollers were in motion, but under her instruction she supposed that she was required to assist in tying such strings while the same were in motion, and did not know that such motion rendered the work hazardous. That such strings could have been tied and secured before the rollers were placed in motion, but of this fact plaintiff had no knowledge, not having experience or instruction, defendants not having instructed her in the manner or way of doing such work, though well knowing the necessity so to do. That, pursuant to the direction of the person in charge, to whose orders she was bound to conform, she proceeded to assist in tying such strings as the first work of the morning, and while in the act of assisting in tying such strings, and by reason of the absence of a hood over the rollers, and the absence of necessary guards, and by reason of the hazardous and dangerous work, and for lack of instruction and knowledge, her hand was inadvertently caught in such rollers, and drawn upon and against the said heated roller, and drawn between such roller and the one next the same, crushed, mangled, and burned, etc (Our italics.) Here follow averments in respect to the extent and character of the injury sustained, and the suffering of appellee occasioned thereby, and judgment is demanded for $15,000. Appellants Pein and Washburn separately and severally demurred to each paragraph of the complaint, on the ground of insufficiency of facts. These demurrers were each overruled by the court, and proper exceptions reserved. The answers of appellants were a general denial. Upon the issues as joined between the parties the case was tried by a jury, and a general verdict returned in favor of appellee for $3,000, together with answers to special interrogatories. Joint and separate motions were filed by Pein and Washburn, first, for a venire de novo; second, for judgment on the answers of the jury to the interrogatories. These motions were all overruled, exceptions reserved, and thereupon said appellants moved for a new trial, which motion was overruled, to which ruling they each excepted. The court then rendered and caused to be entered judgment against Pein and Washburn and the Model Steam Laundry for $3,000, together with costs. Thereupon appellants filed their motion to modify the judgment by striking out the words “Model Steam Laundry.” This motion was overruled by the court, and the judgment was permitted to stand as rendered. From this judgment appellants appealed in term time, and have assigned as errors herein, among others, that the court erred in overruling...

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