44 Ind. App. 245 | Ind. Ct. App. | 1909
Action for damages by Abraham Bossert, administrator of the estate of Benjamin Schoonover, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company.
The verdict was for the plaintiff in the sum of $1,550, and judgment was rendered accordingly, from which defendant
The complaint is founded upon section one, subdivision two, of the employers’ liability act of 1893 (Acts 1893, p. 294, §8017 Burns 1908), which provides “that every railroad * * * shall be liable for damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: * * * Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform.”
The doctrine of assumed risk is read into the statute before quoted, thus making that doctrine a part thereof. American Rolling Mill Co. v. Hullinger (1904), 161 Ind. 673;
As said in the case of Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149, 151, 58 L. R. A. 944: “A distinction is to be noted between statutes such as the employers’ liability act (Acts 1893, p. 294, §§7083-7087 Burns 1901), which provide in general terms that the employer shall be liable for injuries to an employe, * * and statutes which require of the employer the performance of a specific duty. * * * Statutes of the former class do little more than declare the rule of the common law. Statutes of the latter class impose specific obligations. * * * A violation of the second is an unlawful act or omission, a plain breach of a particular duty owing to the servant, and generally constitutes negligence per se.”
We believe the verdict is clearly right upon the evidence. Judgment affirmed.