154 Ind. 584 | Ind. | 1900
This action was brought by appellee against appellant to recover damages for the death of "William D. Glover. The decedent was employed by appellant as a conductor of a stone train. Ills duties were to supply various stone quarries with empty cars to be loaded with stone, and to haul out loaded cars to the main, track. At 6 o’clock a. m. on December 15, 1897, the decedent and his train crew left Bedford for their usual day’s work. A few minutes after 9 o’clock they coupled engine number twenty-eight to some cars, and pushed them into the Hallowell quarry.
One of the causes assigned for a new trial calls in question the correctness of instruction twelve given to the jury. The instruction reads as follows: “Or if you find from the evidence, by a preponderance thereof, that said engine twenty-eight had a foot-board which was negligently constructed by the defendant out of brash, Brittle, and unsound timber, and insecurely placed, and that said Glover was using the said engine number twenty-eight at the time of his injury, in the line of his duty, and was on the said Hollowell switch, and that said engine was in motion, and that he was riding on said foot-board, giving due and reasonable attention to the duties of the occasion, and that at that time defendant company had permitted stone, rock, and debris of various kinds to be placed along said track, on either side thereof, for some distance on either side of the point where the accident is charged to have occurred, which stone, rock, and debris were placed within a foot of the rail of said track, and that said rock, stone, and debris
It was alleged in the complaint that appellant had full knowledge of the defects mentioned in raid instruction, and.that the decedent had no knowledge thereof. Under the allegations of the complaint appellee was required to prove not only that the decedent had no knowledge of said defects, but that he could not have known them by the exercise of ordinary care. Consolidated Stone Co. v. Summit, 152 Ind. 291, 299, 300, and cases cited; Pennsylvania Co. v. Ebaugh, 152 Ind. 531, 535.
It will be observed that said instruction wholly ignores the decedent’s knowledge of the defects mentioned in said instruction, and directs a verdict in favor of appellee, even though the decedent may have had full knowledge of said defects or dangers, or could have had such knowledge by the exercise of ordinary care. If he had knowledge of said defects and dangers, or could have had such knowledge by the exercise of ordinary care, then he assumed the risks resulting therefrom, if thereafter he voluntarily continued
In Pennsylvania Co. v. Ebaugh, 152 Ind. 531, the trial court gave the jury an instruction which contained the element of actual knowledge on the part of the injured employe, hut omitted any reference to his constructive knowledge, and this court said: “The objection urged against instruction nineteen is that it limited the plaintiff’s assumption of risk to the defects in the road-bed of which he had actual knowledge. It is a rule of universal acceptance by the courts of this country that an employe assumes all the ordinary dangers of his employment, which are known to him, or which by the exercise of ordinary diligence would have been known to him.”
As the said instruction twelve directed the jury in plain terms to find for the plaintiff if the facts therein stated were proved, without regard to the actual or constructive knowledge of decedent, it was clearly erroneous. Such an instruction could not be corrected by another which correctly stated the law; this could only be done by withdrawing the instruction from the jury, which was not done. Pittsburgh, etc., R. Co. v. Noftsger, 148 Ind. 101, 109, and cases cited; Wenning v. Teeple, 144 Ind. 189, 194, and cases cited; Clem v. State, 31 Ind. 480.
Appellee insists that said instruction was harmless for the reason that the evidence and the answers of the jury to the special interrogatories show that the decedent had no actual or constructive knowledge of said defects. The jury answered interrogatories concerning the decedent’0 knowledge of the track, the condition of the banks, stones, and
We have read the evidence, and it is of such a character as required the court to submit to the jury the question whether or not the decedent had knowledge, actual or constructive, of the “brash, brittle, and unsound condition of said foot-board and its being • insecurely placed.” In such a case it cannot be said that said instruction was harmless. It follows that the trial court erred in overruling appellant’s motion for a new trial. It is not necessary, therefore, to determine whether or not the answers to the interrogatories show that the decedent had no knowledge, actual or constructive, of the other defects mentioned in said instruction.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.