Wabash Paper Co. v. Webb

• Citation: 45 N.E. 474,146 Ind. 303
• Decision Date: 01 December 1896
• Docket Number: 17,807
• Parties: The Wabash Paper Company v. Webb
• Court: Supreme Court of Indiana

45 N.E. 474

146 Ind. 303

The Wabash Paper Company v. Webb

No. 17,807

Supreme Court of Indiana

December 1, 1896

From the Grant Circuit Court.

Reversed.

O. H Bogue, W. G. Sayre and Brownlee & Paulus, for appellant.

A. E Steele, Alvah Taylor and Pettit & Stitt, for appellee.

OPINION

Howard, J.

Appellee was injured in the paper mill of appellant, his employer, and thereupon brought this action for damages, alleging that his injury was caused by the negligence of appellant. In appealing from the judgment rendered in favor of appellee appellant assigns as error: (1) The insufficiency of the complaint; (2) the overruling of the motion for judgment on the answers to interrogatories; and (3) the overruling of the motion for a new trial.

We have read the complaint and find it carefully drawn, and not subject to the criticisms urged against it by appellant. Neither do we think the court erred in overruling the motion for judgment on the answers to interrogatories, notwithstanding the general verdict. The facts found specially, while perhaps not of themselves sufficient to authorize a judgment in favor of appellee, yet, taken as they must be without intendment, do not seem to be in irreconcilable conflict with the general verdict.

Appellee objects to our consideration of the bill of exceptions containing the evidence, as not being in the record. There is a court entry showing the filing of the bill in open court. This entry erroneously refers to the bill as appellant's "longhand transcript of the evidence," whatever may be meant by that phrase. The paper so filed, however, is also, and properly, styled appellant's bill of exceptions; and an examination of the paper shows it to be, in due form, such a bill, containing, incorporated therein, the longhand manuscript of the evidence taken at the trial. The unnecessary words in the court entry may be rejected as surplusage. Because the bill was filed in open court it does not follow that it was not filed in the clerk's office, as required by law. The filing with the clerk in open court is equivalent to a filing in the clerk's office. There is also some irregularity in the clerk's certificates as to the filing of the longhand manuscript of the evidence and its incorporation in the bill; but it is sufficiently shown, as we think, that the manuscript was first filed in the clerk's office and then incorporated in the bill of exceptions before the bill was presented to the judge, and that the bill was presented to the judge within the time limited and was itself then filed. This is all that is required.

From the evidence, it appears that the accident to appellee occurred at about 6 o'clock on the evening of November 7, 1892. Appellee was then nearly nineteen years of age, active and intelligent for his age, and with good eyesight and hearing. He understood his work well, had been engaged in the appellant's paper mill for a year and nine months, and in the room where he was hurt for three weeks previous thereto. The mill ran night and day, one set of hands working for a week during the day and another for the same time during the night, after which they changed places during the next week, and so on. Appellee had worked in the room where he was injured for two weeks during the day and for one week during the night, and at the time of the accident was about to begin his second week's night work. The room where he worked was well lit by electricity during the night, and was so lit when his injury occurred. He was the "third man," being next under the tender and back-tender. Among his duties were "to do the oiling and cleaning up." He was "general roustabout about the machine," and oiled the machinery every day or night when he was working.

After coming into the room on the evening in question he hung up his coat and hat, and with another young man stood for a short time talking to several girls who were at work. He had not yet put on his overalls when the tender called him to assist in guiding a sheet of finished paper from the "reel" to the "cutter." These machines stand one in front of the other, with an open space between them of 26 1/2 inches, through which the running sheet of paper passes from the rolls, to be cut into such sizes as desired. The paper runs two feet above the floor at one of the machines and four feet at the other. The evidence is conflicting as to whether the sheet sagged in the open space on this occasion; it usually sagged when first connected with the cutter, and then ran "taut." When appellee was called to assist in guiding the paper to the cutter at this time, he stood inside, or on the east of the machines, and took one edge of the paper in his hands, while the tender stood on the west or front side and held the other edge. The paper was several feet in width, and they held it until it was caught by the cutter, after which it ran automatically. Appellee was then to leave his place and come back to the front, or west side, of the machines. The usual way of returning was to stoop under the running paper and pass back by the open space between the machines. One could also reach the front by passing out to the east and around north of the cutter. To go this way he would have to first pass through a ten-inch space, between a pulley on the north and a shaft-support on the south. He would then be in a small square with shafting and other machinery on every side. Out of this square the exit that seems to have been provided by appellant was to the southeast, between two stands or supports, at right angles to each other, on the one of which rested the end of the "reel" shaft and on the other the end of the shaft that turned the "cutter." This space was nineteen inches in...