44 Ind. App. 255 | Ind. Ct. App. | 1909
Among the errors assigned and not waived, the appellant challenges the action of the court in overruling its motion to make the amended complaint more specific, and in overruling its demurrer for want of facts. The theory of the complaint is that the defendant carelessly and negligently built and maintained a certain overhead bridge on its road, which made it dangerous and unsafe for its servants to perform their duties. Certain particulars, wherein the complaint is asked to be made more specific, relate to contributory negligence on the part of plaintiff. This is a matter of defense. Besides no substantial injury could result to
In the case of Indiana, etc., R. Co. v. Bundy (1899), 152 Ind. 590, the court said at page 595: “It is a familiar rule that railroad companies are required to construct their roadways and appurtenances in such a manner as will enable their employes to perform the labor required of them with reasonable safety. Louisville, etc., R. Co. v. Sandford [1889], 117 Ind. 265; Louisville, etc., R. Co. v. Wright [1888], 115 Ind. 378-385, 7 Am. St. 432. This rule requires a railroad company, in any structure erected by it, to have regard for the safety of its employes while engaged in discharging their duties in relation thereto. The environments of the situation, the nature and extent of the services required of its employes, must have potent consideration, and such structure accomplished in a manner that has in view the highest degree of safety that ordinary care will provide. The appellant is excused if it maintains its roadway and appendages in a fashion generally approved and adopted by other first-class railroads of the country.”
In the case before us appellee’s decedent had safely passed over the bridge in question for several months prior to the accident, and other employes for years had done so without accident. There was nothing, therefore, in the experience of decedent or in the history of the road from which the accident could have been anticipated. The decedent was
It is significant that the legislature has fixed eighteen inches as the minimum distance from the nearest point of contact with the cab of the modern locomotive and any
Judgment reversed, with instructions to sustain appellant ’s motion for a new trial.