13 Ind. App. 289 | Ind. Ct. App. | 1895
Appellee alleges in his complaint that he was a conductor on a freight train on appellant’s railroad; that while engaged in making up a work train in the appellant’s yard, at Bedford, he was injured by a defective car; that he had been ordered by appellant to make up said train to take it to Seymour, and had also been ordered to take said car (marked “E. & T. H.” and numbered “3625”) into said train; that before he attempted to take said car from the side-track on which it stood, he had placed upon the main track a
It is insisted by the learned counsel for appellant that the complaint is insufficient, for the reason that upon its face it shows the appellee to have been guilty of contributory negligence. This negligence, the counsel say, is apparent from the conduct of appellee in jumping onto the brake-beam with a coupling-pin in one hand and the other necessarily employed in holding himself on, ‘ ‘ thus riding in a chase after the car that he had sent down the grade in the hope of coupling it to the engine while both were under headway, the possibility of the accomplishment of which he does not claim.” It must be admitted that the hazard necessarily incurred by the appellee in placing himself in the position described in the complaint was considerable, and if it appeared that he received his injury while in this position, and as a result thereof, there would he much force in counsel’s argument that the injury was due in whole or in part to the appellee’s own careless conduct, unless, indeed, the fact that a great emer
The remaining error assigned calls in question the sufficiency of the evidence to support the verdict. The appellant’s counsel contend that it is conclusively shown by the evidence that appellee had knowledge of the defective condition of the E. & T. H. car for some time
Objections are made to some of the instructions given, but when they are all considered together, we think they state the law applicable to the case correctly and are not such as would tend to mislead the jury. Nor do we think there was any error in refusing instructions re
Judgment affirmed.