Wortman v. Minich

• Citation: 62 N.E. 85,28 Ind.App. 31
• Decision Date: 26 November 1901
• Docket Number: 4,042
• Parties: WORTMAN v. MINICH ET AL
• Court: Court of Appeals of Indiana

62 N.E. 85

28 Ind.App. 31

WORTMAN v. MINICH ET AL

No. 4,042

Court of Appeals of Indiana

November 26, 1901

From Sullivan Circuit Court; W. W. Moffett, Judge.

Action by Joseph H. Wortman against Adam v. Minich and others, for damages for personal injuries. From a judgment for defendants, plaintiff appeals.

Affirmed.

G. W Buff, P. Stratton and J. T. Hays, for appellant.

J. S Bays and J. C. Briggs, for appellees.

OPINION

ROBY, J.

The appellant brought this action to recover damages on account of the loss of his hand, through the alleged negligence of appellees. The verdict and judgment were against him and he appeals. The complaint was filed June 24, 1899, trial October 26th of the same year. It was the law at that time that contributory negligence was a matter of defense provable under the general denial, and the plaintiff was not required to allege or prove want of contributory negligence. § 359a Burns 1901.

By its instructions the court informed the jury that the burden of proving the absence of contributory negligence was upon the plaintiff. As the law then stood the giving of these instructions constituted reversible error.

The ninth instruction was as follows: "The defendants further say that the plaintiff was guilty of contributory negligence which conduced to or caused his injury, because of the fact that he attempted to oil said journal with a glove on his hand to which was appended a string and which string hung downward from his wrist. And if you find from the evidence that the plaintiff attempted to oil said journal while said machine was in motion and while said wheels were unprotected by said shield, with a glove on his hand, with a string appended to the same and which hung downward, and while he was in the act of so attempting to oil said journal the said string appended to his glove caught in the cogs of said wheels, and that the catching of said string in the said cogs of said wheels caused his hand to be pulled down into the meshes of said cog-wheels, causing the injury of which he complains, then such facts would constitute contributory negligence on the part of the plaintiff and would defeat a recovery in this action."

The wearing of a glove while oiling machinery might or might not be an act of negligence; ordinarily it would not be. Whether the fact that a string hung from the glove would or would not be negligence must be determined from the length of the string, its size and strength, and the manner in which it was hanging, the purpose of its being attached thereto, the knowledge of the person doing the work, and, in short, of all the surroundings. The question was one of fact for the jury. The instruction invaded its province and was erroneous.

A further question remains to be considered. It arises under the following sections of the statute. "Nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below." § 670 Burns 1901. "The court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason of such error or defect." § 401 Burns 1901.

These provisions accord with the requirements of enlightened jurisprudence. Courts are organized for the purpose of dealing with substantial rights. The Constitution provides that "every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay." § 57 Burns 1901. It is as much the duty of this court to decide controversies upon their merits as it is the duty of the circuit and justice courts to do so. No judge may lawfully be astute for any purpose except that of doing justice upon the facts. In view of these principles the case at bar must be affirmed, notwithstanding the palpable errors heretofore specified.

The appellees operated a corn-husker and fodder cutter. Appellant was employed to feed this machine and among his duties was that of oiling it. On the rear of the machine were two cog-wheels; the one was fifteen inches in diameter, and the other three inches; these cog-wheels meshed into each other and were in plain sight from the place occupied by appellant when feeding the machine. The cog-wheels had been, before the plaintiff received his injury, and should then have been covered by a metal shield excluding dust and guarding against accident. The shield was not in place at the time referred to but had been broken several days before, leaving the cog-wheels exposed, in which condition they had been during all the time of appellant's employment. The absence of this shield is the negligent...