66 Ind. App. 241 | Ind. Ct. App. | 1917
Appellee, a girl seventeen years of age, was injured while employed by appellants in their laundry by having her hand drawn into a mangle. This particular mangle was a machine consisting of a large cylinder and several small rolls set in a frame and so constructed that when in motion the large cylinder turned against and upon the smaller rolls which were placed at fixed intervals around it, the small rolls turning" in an opposite direction, giving the machine an intake feed of great' compression. On one side of the mangle, a short distance above the point of contact of the rolls, was a brass feed plate, over and upon which clothing was fed into the mangle by the operator. It was run by steam power and the large cylinder and other parts
The theory of the first paragraph of complaint is that the mangle was a dangerous machine which could be guarded without interfering with its usefulness, and that the appellants carelessly and negligently furnished and maintained an improper and insufficient guard on said mangle, and that such negligence was the proximate cause of appellee’s injury. The second paragraph is substantially the same as the first, except that it alleges a failure to furnish any guard.
Numerous errors are assigned, but the overruling of appellant’s motion for a new trial presents the controlling questions.
Appellants claim these instructions were errone
Appellee seeks to justify the giving of these instructions upon the ground that it was an uncontroverted fact in' this case that the machine was a dangerous one within the meaning of the statute. The record does not seem to bear appellee out in her contention. One of the issues raised by the complaint and general denial thereto was the dangerous character of the machine in question, and several witnesses testified upon the subject. We think that, under the issues and the evidence, whether the mangle was a machine of a dangerous character of not was a question of fact for the jury. United States Cement Co. v. Cooper (1909), 172 Ind. 599, 612, 88 N. E. 69.
The giving of' such instructions, and especially No. 12, was error.
An instruction substantially the same as the one here involved was recently before this court for consideration in Picken v. Miller (1915), 59 Ind. App. 115, 108 N. E. 968, and we there held that the giving of such an instruction was harmful error. Appellee’s contention that the two instructions can be distinguished cannot be upheld. The slight change in the language used is not sufficient to remove the vice of the instruction. Pichen v. Miller, supra, and cases cited.
For the error in the giving of instructions the motion for a new trial should have been granted.
Other questions are raised, but, as they are not likely to arise on a second trial, it is deemed unnecessary to give them further consideration.
Judgment reversed, with instructions to grant appellants’ motion for a new trial.
Note. — Reported in 118 N. E. 136.