173 Ind. 57 | Ind. | 1909
Lead Opinion
Appellant prosecutes this appeal from a judgment of $8,000 recovered by appellee as administratrix of the estate of Charles Roudebush, deceased, for the
The errors assigned are: (1) Overruling appellant’s demurrer to the complaint; (2) overruling appellant’s motion for judgment in its favor on the answers of the jury to interrogatories, notwithstanding the general verdict; (3) overruling appellant’s motion for a new trial.
The condensed allegations of the complaint, omitting formal matters, are, in substance, as follows: That appellant is a corporation, and on May 23, 1906, was engaged in operating a single track electric interurban railroad seven miles in length between the city of LaFayette and Battle Ground; that on and before said date it had in use two large and heavy passenger-ears known as No. 24 and No. 251, capable of making a speed of forty miles per hour, and which were usually run between said stations at a speed from twenty to thirty miles per hour; that Charles Roudebush was in appellant’s employ as motorman, sometimes operating one, and sometimes the other of said cars; that when not in use said cars were kept in a barn in the city of LaFayette, and on some days only one of said cars was in use, and on other days both were in service, each making hourly round trips; that on days when both of said cars were to be used it was the practice that the first ear should leave the public square in said city at 6 o’clock a. m. and return at 7 o’clock a. m., and have a clear track, and the second car should not be put on until 7:30 o’clock a. m., and thereafter while both cars were in operation they would pass at a certain siding some distance south of the midway point on said line, and the southbound car should have the right of way; that no telegraph or telephone system, or any other means, was provided for communicating between the offices and employes operating said cars when away from terminal points; that on May 23, 1906, Roudebush was, by appellant, required to appear at 6 o ’clock a. m., and take out said car No. 24 and to leave the public square at said hour; that he made the run to Battle Ground
The demurrer concedes the truth of all facts properly pleaded, and conceding the truth of the allegations of this complaint a cause of action is stated. It is made to appear that when two cars were in operation over the track described, the first one sent out ordinarily made one round trip before the other was started; that the second car left the public square in the city at 7:30 o ’clock, at which time the first car left the other end of the line at Bat-tie Ground, and the passing point was switch No. 54, the south-bound car having the right of way; that a second ear was started on the morning of the accident at 6:38 o ’clock, contrary to the usual custom, and without the knowledge of those in charge of the ear at the other end of the line, and without any means of advising them of the fact; that this car was started by appellant eight minutes after the time the south-bound car should have left the north terminus, consequently sufficient time to reach the usual passing point was not allowed; that no orders or directions were given for it to take an intermediate siding, with knowledge on the part of appellant’s officers in charge that the cars would, in the usual course of events, meet at a dangerous curve in the road. The complaint states a cause of action. Louisville, etc., R. Co. v. Heck (1898), 151 Ind. 292; Slater v. Jewett (1881), 85 N. Y. 61, 39 Am. Rep. 627; 3 Elliott, Railroads (2d ed.), §1281.
The court of its own motion gave the following instruction: “The employe in accepting employment assumes as part of such employment the usual and ordinary hazards incident to the discharge of the duties of his employment, and also all such hazards as are open and obvious to one who is in the exercise or discharge of such duties, or which could have been known to him by observation or by the exercise of reasonable care and diligence, or which were in fact known to him from any source whatever. But an employe does not assume in his employment hazards, if any, which are the result of the negligence of the master.”
It is contended that a servant assumes all Imown hazards, whether they arise from the negligence of the master or of others, and that the last sentence in the instruction quoted is manifestly erroneous. As a general rule, the servant is held to the assumption of all risks of the employment known to him, including those springing from the master’s negligence, unless such negligence consists in the violation of some statutory duty imposed for the safety of the employe. The jury expressly found that until the deceased met car No. 251 upon the curve he had no knowledge that it was upon the track, or was to start until 7:30 o’clock
No error is made to appear in overruling appellant’s motion for a new trial.
The judgment is affirmed.
Rehearing
On Petition for Rehearing.
Counsel for appellant on petition for rehearing reassert the insufficiency of the complaint, and re-argue other questions originally presented, considered and decided by the court. The complaint is not to be commended as a model pleading, but if all its allegations were true appellant would not only be guilty of gross negligence, but almost of a wilful disregard for the lives of its employes. It is earnestly insisted that appellant had a right-to run an extra car over its road, without regard to its usual custom, or the knowledge of employes on other ears, or the means of advising them, or the condition of the track, provided it used ordinary care in the premises. This contention may be conceded, but in this complaint it is made to appear, prima facie, that ordinary care for the safety of its operative men was not exercised. It is averred that appellant’s officers and agents in charge of its road started a second ear from LaPayette northward over a single track railway, knowing that the decedent’s car coming south had the right of way, and,- in the natural course of events, would meet the north-bound ear upon a dangerous curve, and cause a collision, but gave no order or direction to the motorman or
It is inconceivable that proper management would permit the meeting of cars on a single track at such a point, and would not provide for their passing at a convenient siding. The south-bound car had the right of way, was not required to take a siding, and could not be expected to back up in case of a meeting between passing points. In the circumstances stated, it appears to us that the natural, ordinary and only reasonable provision to have been made for the passing of the cars was to direct the north-bound ear to take the appropriate siding, which is alleged to have been immediately south of the curve, and that sending a man ahead on foot to give warning, as suggested, or any other arrangement which would permit the cars to meet where they could not pass, would have been absurd. It is alleged that no order to take the siding was given, and that the collision occurred as appellant’s officers knew in advance that it naturally would occur. Taking all the allegations of the complaint together, we think it clearly appears and is properly alleged that the deceased was without knowledge of the peril to which he was exposed and did not assume the risk, and that the complaint is sufficient in all respects.
The petition for rehearing is overruled.