Vincennes Water Supply Company v. White
| Decision Date | 07 June 1890 |
| Docket Number | 14,274 |
| Citation | 24 N.E. 747,124 Ind. 376 |
| Parties | The Vincennes Water Supply Company v. White |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Sept. 17, 1890.
From the Knox Circuit Court.
Judgment reversed, with directions to grant a new trial, and for further proceedings not inconsistent with this opinion.
F. W Viehe and M. J. Niblack, for appellant.
J. S Pritchett, W. A. Cullop and C. B. Kissinger, for appellee.
This was an action by the appellee against the appellant to recover damages on account of a personal injury.
The complaint alleges, substantially, that the appellant is a corporation, organized under the laws of the State of Indiana; that on the 12th day of July, 1886, the appellant was engaged in constructing, in and for the city of Vincennes, certain waterworks, and in connection therewith was constructing an engine-house and stand-pipe, and digging a ditch from within the inclosure of the engine-house to the stand-pipe, a distance of about one hundred feet; that at said time appellant was laying the foundation of said engine-house by digging excavations for the same to the depth of four feet, and the width of two feet, and filling the same with brick, stone, and mortar; that the appellee was engaged as a laborer, in the employment of the appellant, in digging said ditch leading to said stand-pipe, and was digging therein at the place of intersection of said ditch and the foundation aforesaid; and while so engaged, at the bottom of said ditch, the banks and overhanging earth on either side thereof, without any fault or negligence on the part of the appellee, caved in, fell upon him and broke his leg; that the caving in and falling of said banks were caused by the negligence and carelessness of the appellant in this: that the soil in which said ditch was dug was largely composed of dry sand and gravel, after a depth of ----- feet below the surface, which fact was known to the appellant; that the banks of said ditch, when dug to the depth of eight feet, and the length of ----- feet, were not self-supporting, because of the kind of soil, and would cave in, or were at any time liable to cave in unless supported by stays, which fact the appellant knew from constant observation, and from many years of experience in digging ditches in such soil, and of which appellee was ignorant, having had no experience in such work prior to said time; that knowing the depth of said ditch, and the imminent peril of appellee while at work therein, because of the banks thereof being liable to cave in at any time, and knowing the necessity of having proper stays to prevent the same from caving, which could have been provided at but little expense, the appellant carelessly and negligently omitted to provide said stays, or to use any other means of precaution to prevent the banks from falling in, in consequence of which omission the appellee was injured as aforesaid, without any fault on his part.
Upon issues formed the cause was tried by a jury, resulting in a verdict and judgment for the appellee.
The assignment of error calls in question the correctness of the ruling of the circuit court in overruling the motion for a new trial.
The only reasons assigned for a new trial were that the verdict of the jury was not supported by the evidence, and was contrary to law.
Before considering the questions arising on the assignment of error, it becomes necessary to meet and decide an objection made by the appellee as to the sufficiency of the clerk's certificate to the transcript, and an objection that the bill of exceptions containing the evidence is not properly in the record.
There has been no motion interposed to dismiss this cause on account of the insufficiency of the clerk's certificate. Following the suggestion contained in appellee's brief, we have, however, examined the certificate, and find it a substantial compliance with the statute.
The motion for a new trial was filed and overruled on the 3d day of March, 1887, and sixty days' time were given by the court to file bills of exceptions.
The judge before whom the trial was had inserted the following in the bill of exceptions now before us:
"This bill was tendered to me for approval and signature this 2d day of May, 1887.
The bill, however, was not signed until the 9th day of June, 1887.
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