42 Ind. App. 512 | Ind. Ct. App. | 1908
Appellee obtained judgment in the court below for personal injuries sustained by him by reason of falling from the rear platform of a caboose attached to a locomotive and tender. The appellant presents for review the action of the court in overruling its demurrer to each paragraph of the amended complaint.
It is not charged in any manner that the caboose itself or any part of it was defective or unsafe, except so far as made unsafe by the presence of the chain which was piled near the brake and near the steps. The allegation concerning the ear inspector is not inconsistent with his having acted on the occasion in question merely in the capacity of a fellow-servant with the appellee. It does not appear from this para
In what is attributed. in this paragraph to the car in
The third paragraph proceeded upon the theory that the appellee, a brakeman, was required by a certain yardmaster of the appellant, and against the will and over the objection of appellee, to act as brakeman on a train, consisting of a locomotive, tender and caboose, which left Momence to go to Oxford, Indiana, requiring a period of sixteen hours to make the trip, when the appellee had been without a full period of rest and relief from duty for more than sixteen consecutive hours. It was sought to base this paragraph upon the legislative enactment approved February 28, 1903 (Acts 1903, p. 113, §5185g et seq. Burns 1905). This enactment limited the hours of service of railway employes, gave a right of action, and fixed penalties for its violation. It does not apply “in eases of accident, wreck or other unavoidable cause.”
The judgment is reversed, and the cause remanded, with instructions to sustain appellant’s demurrer to each paragraph of the complaint, with leave to amend.