175 Ind. 567 | Ind. | 1910
Appellee recovered a judgment for a personal injury sustained while in appellant’s service, on account of its alleged negligence. His complaint was in three paragraphs, and, demanding our first consideration, are the alleged errors in overruling demurrers to each of such paragraphs.
It is alleged that appellant knowingly, negligently and carelessly permitted the blocking in said frog to be and become so worn and rotten that only a small piece of wood about six inches in length remained, which was wholly unsuitable and inadequate to block said frog, and to keep the feet of employes from becoming fastened therein; that said piece of wood was not nailed nor fastened, but lay loose in said frog, and appellee’s foot was caught, and he was thrown and injured by reason of the fact that said frog was improperly, defectively and inadequately blocked, as aforesaid.
It is further alleged that it had been and was appellant’s custom and practice to block all frogs upon its lines, switches and side-tracks, which fact was known to ap
Appellant challenges the sufficiency of this paragraph, claiming that it discloses contributory negligence, or that appellee’s injury was the result of a risk assumed by him.
Appellee avers, in general terms, that he was in the exercise of due care when injured, and the particular facts alleged do not contradict this averment. It is well settled that contributory negligence must affirmatively appear on the face of the complaint, to justify the sustaining of a demurrer thereto for such cause.
It is alleged that it was the custom and practice of appellant to block all of its frogs, which fact was known to appellee, and that he had no knowledge of the unsafe condition of the frog in question, and, relying on such custom and practice, and being absorbed in the performance of his duties, he did not discover the defect that caused his injury. These allegations were abundantly sufficient to repel any claim that the accident was the result of an assumed risk. Appellant’s objections to this paragraph are untenable, and its demurrer was correctly overruled.
The third paragraph of complaint contained all the alie
The first paragraph having been held good, it is manifest that for the same reason, as well as other reasons, the second and third paragraphs were properly held sufficient.
A new trial was sought on the grounds of error in giving and in refusing to give certain instructions, in the admission and rejection of certain evidence, in not requiring the jury to make fuller and more specific answers to certain interrogatories, and because the verdict is nofl*sustained by sufficient evidence and is contrary to law.
Instruction twenty-four, relating to the assessment of damages, of which appellant complains, is almost a literal copy of one approved in the case of Pittsburgh, etc., R. Co. v. Montgomery (1898), 152 Ind. 1, 26, 69 L. R. A. 875, 71 Am. St. 300.
The motion for a new trial was correctly overruled, and the judgment is affirmed.