Squire, O'Neil v. (Mass.). 797. Saccripante v. Philadelphia & Reading Coal & Iron Co. (N. Y.). 1075 V., two cases (N. Y.). Schelskie, Adams v. (Ohio). 704 670 St. John v. Olmsted (N. Y.). Saxe, People ex rel. Park Row Realty Co. Schlehuber v. American Exp. Co. (Mass.) 828 State, Bleiweiss v. (Ind.). .1075 ....1013 .1069 ..1070 252 Staats-Raynes Co., Raynes v. (Ind. App.).. 809 .1077 581 479 New .1039 291 .1065 Title Guaranty & Surety Co., Clausen v. (N. Y.) Title Guaranty & Surety Co., Stewart v. (N. Y.) ....1080 T. J. Moss Tie Co. v. Hite (Ind. App.). 145 T. J. Moss Tie Co. v. Hite (Ind. App.)....1003 Todd, Triangle Waist Co. v. (N. Y.).......... 85 Toledo & O. C. R. Co. v. S. J. Kibler & Bros. Co. (Ohio). Torphy v. State (Ind.). ... Town of Saugerties, Lanigan v. (N. Y.)...1053 Wainwright Trust Co. v. Dulin (Ind. App.) 387 .1084 680 137 ...1035 ... 733 .1002 .1082 ..1085 Travis, People ex rel. Palmer v. (N.Y.)... 427 85 Ward v. Massachusetts Northeastern St. 762 564 223 .1085 ..1085 ..1048 744 879 652 383 97 THE NORTHEASTERN REPORTER VOLUME 119 (187 Ind. 302) ROTH et al. v. VANDALIA R. CO. et al. (No. 23265.) bill of exceptions containing the evidence was filed after being signed by the judge. (Supreme Court of Indiana. March 22, 1918.) briefs from the files upon the ground that the 1. APPEAL AND ERROR CORRECTNESS-CERTIFICATE OF CLERK-CON CLUSIVENESS. Where the judgment is written in longhand in the transcript, and appellee claims it was not written by the clerk, and that there is no such judgment in the order book, and appellee has had time to show it by certiorari, but has not, the certificate of the clerk will uphold it. 2. JUDGMENT 218-FORM REQUIRED. [1] Appellants moved to strike appellees' first contention above is a violation of the 663(1)-RECORD-rules of the court, which appellees invoked in their verified petition for leave to file briefs. The Appellate Court postponed action on this until final hearing. In the meantime, the cause has come here under the Disparity Act (Burns' Ann. St. 1914, § 1405). In the transcript, following the verdict, there is written in longhand the mooted judgment. It is contended by the appellees that this was not written in by the clerk, and also that there is no such judgment in the order book. If this is so, appellees have had enough time to show it by certiorari. The certificate of the clerk makes the transcript import verity to us. Great formality is not required in a judgment, where plaintiff takes nothing and defendants recover costs. 3. APPEAL AND ERROR 768-MATTERS REVIEWABLE-BRIEFS. Where appellee's brief does not controvert errors complained of, they stand confessed, because the appellate courts have no time to act as counsel. Appeal from Superior Court, Marion County; W. W. Thornton, Judge. Action by John H. Roth and others against the Vandalia Railroad Company and others. Judgment for defendants, and plaintiffs appeal. Transferred from the Appellate Court, under section 1405, Burns' Ann. St. 1914. Reversed and remanded. George W. Galvin, of Indianapolis, for appellants. Pickens, Moores, Davidson & Pickens, of Indianapolis, for appellees. TOWNSEND, J. This is an action by the appellants against appellees for damages for obstructing the natural channel of a stream. The jury's verdict was for the defendants, and plaintiffs appeal. [2] It is also contended that the judgment Great formality is not sufficiently formal. is not required where plaintiffs take nothing and defendants recover costs. Even the minutes of the court transcribed into the order book ought to be nearly, if not quite, enough in such a case. Appellees' second contention is that the original bill of exceptions containing the evidence is not in the record. We hold that it is. [3] We are offered no further assistance by appellees than that which we have heretofore indicated. Appellants' brief contains 139 typewritten pages presenting various questions which arise on motion for a new trial. This court has repeatedly said: controverting the errors complained of by an "The neglect of an appellee to file a brief appellant may be taken or deemed to be a confession of such errors, and the judgment may accordingly be reversed, and the cause remanded without prejudice to either party. This rule was not declared in the interest of an appellant, but for the protection of the court, in order to relieve it of the burden of controverting the arguments and contentions advanced for reversal, which duty properly rests upon counsel for the appellee." Burroughs v. Burroughs, 180 Ind. 380, 103 N. E. 1, and cases there cited. The cause was submitted in the Appellate Court August 18, 1915. Appellants' briefs were filed December 17, 1915. Appellees did nothing until 11 months and 3 days thereafter. They then filed a verified petition, saying that they had not filed and would not file any motion to dismiss, and asked that they be permitted to file briefs. This was granted, and they filed briefs on December 29, 1916. By their briefs appellees present two conten- Another cogent reason for invoking this tions only: First, that there is no judgment rule is that the time of the court should be shown in the transcript and therefore the ap- devoted to cases that are properly briefed. peal should be dismissed; second, that the Litigants who are making a good-faith effort transcript does not show that the original to help the court should not be delayed while For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 119 N.E.-1 this court attempts to perform the duties of counsel. Judgment reversed, with instructions to grant a new trial and for further proceedings. (137 Ind. 469) March 19, 1918.) TO SERVANT-"WORKING PLACE." A window, and a stick inserted against the window sash a few feet from a machine at which a wire factory employé was working, held a part of his working place within Laws 1911, c. 88, § 3, relating to the risks of employment due, to defective working places, etc. [Ed. Note. For other definitions, see Words and Phrases, Second Series, Working Place.] 2. MASTER AND SERVANT 179-INJURIES TO SERVANT-FELLOW SERVANT. Laws 1911, c. SS, § 1, making employers liable for damages caused by their negligence or by that of their servants, abolishes the fellow servant doctrine. 3. MASTER AND SERVANT 265(4)-INJURIES TO SERVANT-BURDEN OF PROOF. Under the direct provisions of Laws 1911, c. 88, § 3, defendant employer has the burden of proving that he did not know of defects in an employé's working place, and was not chargeable with knowledge thereof in time to repair it or discontinue its use before the injury. 4. APPEAL AND ERROR 930(1)—PRESUMPTIONS EVIDENCE. The Supreme Court must presume that the jury and trial judge fairly performed their duty in passing upon conflicting evidence. 5. MASTER AND SERVANT 278(3)-INJURIES TO SERVANT-NEGLIGENCE. Evidence that defendant wire factory placed an unfastened stick against a window sash to keep out moisture, and that plaintiff employé was injured while attempting to prevent it from falling into a machine, etc., held to sustain a verdict finding defendant negligent. 6. RELEASE ~57(2)—INJURIES TO SERVANT FRAUD. If you find from the evidence that at the time of the alleged accident the plaintiff was operating one or more wire-drawing machines; that said machines were each equipped with a foot pedal by which said machines and each of them could be instantly stopped; that when plaintiff observed the stick of wood about to fall out of the window, if said stick was about to fall therefrom, he was four to seven feet away from the bench upon which said wiredrawing machines were located, and that in the exercise of ordinary care he could have stopped said machines by the use of the pedal and avoided the accident, but that instead of so doing the plaintiff negligently went to the bench, took an iron bar, and reached over the top of one of said wire-drawing machines, while the same was in motion, in order to push said stick back caught in the machine and his arm injured, and into place, and while so doing his glove was said injury was his failure to stop said machine you further find that the proximate cause of before attempting to put said stick of wood back into place, then the court instructs you that your finding should be for the defendants. Solon J. Carter, of Indianapolis, and D. P. Williams, of St. Louis, Mo., for appellants. George W. Cromer and Harry Long, both of Muncie, for appellee. TOWNSEND, J. Appellee, as employé of appellant wire company, sustained fracture of both bones of his right forearm while working in the wire company's factory. Appellant the Fidelity & Casualty Company of New York, as insurer of the wire company, settled with appellee for $120. This action settlement. The verdict of the jury was for is against both appellants for fraud in the $7,500, less the settlement, and judgment was rendered against appellants for $7,380. The questions presented by motion for a new trial are as follows: (1) Verdict is not sustained by sufficient evidence. (2) Verdict is contrary to law. (3) Errors in giving and refusing instructions. We shall consider the first two together. In a servant's action, evidence that a physician employed by defendant employer, misrepresented the time in which plaintiff employé So far as the negligence is concerned, the would recover, held to sustain a verdict set- complaint is based on section 3 of Acts 1911, ting aside a release procured for an inadequate p. 145, and is the failure of the wire comsum as fraudulent. 7. TRIAL 194(19)-INJURIES TO SERVANT-pany to furnish appellee a safe place to INSTRUCTIONS. 8. TRIAL 260(1)—INSTRUCTIONS-INSTRUC TIONS ALREADY COVERED. Refusing requested instructions substantially covered by given instructions is not errone work. Defendant employer's requested instruction The evidence shows, following the allegathat plaintiff employé could not recover if he tions of the complaint, that the wire comnegligently reached over a machine while attempting to put a window stick back in place, pany employed from 150 to 200 men; that in etc., held properly refused as misleading, be- its factory there was a bench along the south cause characterizing plaintiff's conduct as neg- wall of the room about 22 or 3 feet high ligent. and about the same width; that on this bench were vertical iron spools about 12 inches in diameter at the top and about 16 inches in diameter at the bottom; that in the top of each spool were four holes which were fitted with iron pins about 2 feet long with hooks on top to prevent wire from flying off; that these spools were about 1 foot apart and about 12 or 13 inches from the south wall of the building; that they were rotated rapidly by electrical power transmitted by a line shaft and gears under the ous. Appeal from Circuit Court, Delaware County; Wm. II. Eichhorn, Special Judge. Action by Albert Studes against the Indiana Steel & Wire Company and the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendants appeal. Affirmed. Appellants' requested instruction No. 11, bench; that each spool could be stopped by mentioned in the opinion, is as follows: a foot pedal which projected through a sheet For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |