104 Ind. 88 | Ind. | 1885
The first error of which complaint is made here on behalf of the appellant, the defendant below, are those which call in question the sufficiency of the facts stated in appellee’s complaint to constitute a cause of action.
This suit was commenced in the Noble Circuit Court, in this State, but afterwards, and before trial and judgment, the venue of the cause was changed to the court below. In hie complaint, the appellee alleged that appellant was a corporation, under the laws of this State, and as such owned a line of railroad running into and through Noble county, in this. State, and was and had been, prior to and at the time of the grievances and injury complained of, the owner of locomotive engines and trains of cars, used and employed by appellant before and at the time mentioned in the transportation of freight and carriage of passengers, on its line of railroad,» into and through such county; that prior to. the time of appellee’s injuries, hereinafter mentioned, appellant had constructed a bridge over and across its road, in such county, at a place where it was crossed by a public highway, about one and one-half miles east of its depot in the town of Albion that by the appellant’s negligence, in keeping its railroad in repair and safe condition, at the place where such bridge was. constructed, and in constructing such bridge and keeping it in safe condition for the passage of its trains, such bridge was not constructed of sufficient height above appellant’s! railroad to permit the brakemen on its freight trains to stand at the brakes at their proper and necessary places on top of freight cars, and perform their - necessary duties, while such trains were moving on and along its railroad through and under such bridge, without great danger to the persons and lives of its brakemen on such freight trains.
And the appellee further alleged that at and prior to the commission of the injuries thereinafter mentioned, appellant and its agents and servants well knew, and, by the exercise of reasonable diligence, might have known, of the improper construction and insufficient height of the bridge aforesaid, and
And the appellee averred that, on the 29th day of June, 1878, he being then in appellant’s employ as a brakeman on one of its freight trains on its railroad, in such county, for a certain hire to be paid him by appellant for his services as such brakeman, the appellant did, on the day named, at Garrett, in such State, order and direct appellee to take his proper place on top of one of appellant’s freight cars of one of its freight trains, then running between such town of Garrett, through Noble county to the city of Chicago, on appellant’s railroad; that such freight train was composed in part of certain freight cars, known as “ refrigerator cars,” which were placed in the section of such train upon which by appellant’s rules it became the duty of appellee to take his place as such brakeman, and upon the top thereof to do and perform the labor and services required of him as such brakeman ; that the appellee being then and there ignorant of the improper construction of the bridge over appellant’s railroad, at the place aforesaid in Noble county, and being ignorant of the negligent maintenance and repair of such bridge
It is earnestly insisted by appellant’s learned counsel, that appellee’s complaint does not state sufficient facts to constitute a cause of action, or to show that appellant is liable to him for the injuries he received while in its service and in the proper discharge of the duties of his employment. After criticising the complaint at some length, appellant’s counsel say: “In short, setting aside a jugglery of words respecting negligence, the allegations of the complaint would fix the fellow servants of the appellee with negligence, such as would
In this connection we may properly note that in Beach on Contributory Negligence, section 134, in speaking of these decisions, it is vigorously said : “ If the roof or overstructureof the bridge is so low that it will strike a brakeman standing erect upon the top of his train, it is an essentially murderous contrivance, and it'is not creditable to our jurisprudence that such buildings are not declared a nuisance. There is nothing in the reports worse than the cases that sustain the railway corporations in building and maintaining these man-traps.”
The case in hand is one of first impression in this State, and we are not concluded by any previous decision of this court. We are impressed with the opinion that appellant’s counsel misapprehend the force and effect of the facts stated in appellee’s complaint, and admitted to be true, as the question of their sufficiency is now presented. Stripped of the “jugglery” of adjectives or qualifying words, the material facts admitted to be true were, (1) the construction and main
It will not do, we think, to say that these facts were not sufficient to constitute a cause of action against appellant for the recovery of such damages as appellee sustained. It seems to us that a railroad company is, and ought to be, required to construct and maintain its roadway and appendages, and its overhead structures, in such manner and condition that its employee or servant can do and perform all the labors and duties required of him, with reasonable safety.
In Houston, etc., R. W. Co. v. Oram, 49 Texas, 341, it was held by the Supreme Court of Texas as follows: “ It is the duty of the railroad company to use ordinary care to provide such cars, road-bed, tanks, etc., as are reasonably safe ; that a failure to do this, is negligence chargeable on the company itself •, and that the company is responsible in damages to an employee for an injury resulting, without his negligence, from a tank or other appendage of the road so negligently constructed as to subject the employee to unnecessary and extraordinary danger which he could not reasonably anticipate or know of, and of which he in fact was not informed.”
.Doubtless, the general rule is, as it was declared to be by Chief Justiee Shaw, in the leading case of Farwell v. Boston,
In Hough v. Railway Co., 100 U. S. 213, in speaking of the exceptions to the general rule, that a master is not liable to his servant for injuries sustained by the negligence of his fellow servants, the Supreme Court of the United States says: “ One, and perhaps the most important, of those exceptions arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when •conducting the master’s business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master. To that end the master is bound to observe all the care which prudence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter.” The doctrine here declared is in harmony with and supported by the recent decision of this court in the well considered case of Indiana Car Co. v. Parker, 100 Ind. 181.
Under the alleged error of the court in overruling the motion for a new trial, the appellant’s counsel first complain of the instructions given by the court to the jury trying the cause. Of these instructions counsel say: “ The court gave such instructions as tended to mislead the jury and befog their minds as to the law, and leave them to grasp at any intimation, that they would be justified in finding a verdict against the defendant, a railroad company.” We do not think that the instructions given by the trial court deserve this sweeping criticism at the hands of appellant’s counsel. The evidence has not been made part of the record before us, and of course it is difficult, if not impossible, for us as an appellate court to judge clearly or accurately of the applicability of the instructions to the case made by the evidence. In such a case, where the evidence is not in the record, the rule has always been in this court, that a judgment will not be reversed on account of an instruction given, if such instruction could have been correct under any supposable state of the evidence which might have been introduced under the issues in the cause. Miller v. Voss, 40 Ind. 307; Ohio, etc., R. W. Co. v. Nickless, 73 Ind. 382; Rozell v. City of Anderson, 91 Ind. 591. Applying this rule to the case in hand, we have no difficulty in reaching the conclusion that there is no available error in the instructions given.
Complaint is made, also, of the court’s refusal to give certain instructions at the request of appellant. Where, as in this case, the evidence given on the trial is not in the record, we will presume, in favor of the ruling of the court below, that the instructions asked for by appellant were properly refused, because they were not applicable to the case made by the evidence. Freeze v. DePuy, 57 Ind. 188; Powers v. State, 87 Ind. 144; Louisville, etc., R. W. Co. v. Harrigan, 94 Ind. 245.
The interrogatories and answers are entirely too numerous .•and too long to be set out in this opinion. , We have cai’efully considered them, however, and have reached the conclusion that there is no such inconsistency between the special findings of the jury and their general verdict as entitled the appellant’to a judgment in its favor on such special findings, notwithstanding the general verdict in favor of appellee. Section 547, R. S. 1881, provides: “When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.” All reasonable presumptions are indulged in favor of the general verdict, in determining the question under consideration, while nothing will be presumed in aid of the special findings. McCallister v. Mount, 73 Ind. 559; Cook v. Howe, 77 Ind. 442; Lassiter v. Jackman, 88 Ind. 118.
In construing section 547, supra, it has been held that all the facts stated in the special findings of the jury must be taken and construed together, for the purpose of ascertaining their true legal effect, and if, when thus taken and construed, they are clearly inconsistent and can not be reconciled with the general verdict, they will control it, and the court must
The trial court did not err, we think, in overruling appellant’s motion for judgment in its favor on the special findings of the jury, notwithstanding their general verdict.
It is also claimed by appellant^ counsel, that the court erred in overruling the motion in arrest of judgment. This motion called in question the sufficiency of appellee’s complaint, after trial and verdict. If we are right, as we think we are, in holding the complaint good on demurrer, it is certainly good after verdict, on the motion in arrest.
We have found no error in the record of this cause.
The judgment is affirmed, with costs.
Mitchell, J., took no part in the decision of this cause.