170 Ind. 1 | Ind. | 1908
This is a common-law action for negligence involving the relation of master and servant.
It is averred, among other things, in the first paragraph of appellee’s complaint, that appellant owned and operated a manufacturing plant, including a foundry and yards, and through and about its premises operated a certain “pony engine ’ ’ and cars, and also owned a number of trucks for transporting materials by hand about its establishment; -that a railroad track ran through said plant westward to a coal shed, and described a short curve to the north at the point of the accident; that certain piles of iron stood north of said track leaving a space between the same and the track sufficiently wide to allow said trucks to pass in safety; that at the time of the accident appellee was at work north of the track loading certain iron upon a truck; that on said day appellant by and through its servants, whose names are unknown to appellee, carelessly and negligently permitted a certain truck to remain across said passageway in close proximity to the track, and appellant carelessly and negligently permitted its engine to be propelled over said track and past said point in charge of but one man (the engineer), and carelessly failed to provide another person to keep a lookout upon the side of the track where said truck was located; that as said engine passed westward over said track drawing a flat-ear, which had two stakes upbn each side, running down beyond the bottom of the ear bed and resting upon the steel
The second paragraph of complaint alleged that appellant carelessly and negligently suffered and permitted the truck to be placed in its yards in such close proximity to the railroad track that said car in passing that point would hook onto the same, and, knowing of the location of said truck, carelessly and negligently suffered and permitted it to be and remain in such place until the happening of the accident.
The negligence alleged in the fifth paragraph of complaint was in allowing a certain footstep on said flat-car to be and remain in a broken, bent and twisted condition, in such a way as to project from the side of the car and catch upon said truck.
Demurrers to . each of these paragraphs of complaint were overruled, and appellant answered by general denial. A trial by jury resulted in a verdict for appellee, and with its general verdict the jury returned answers to numerous interrogatories. Appellant’s motion for judgment upon the answers of the jury to interrogatories, notwithstanding the general verdict, and motion for a new trial, were overruled, and judgment rendered in favor of appellee in accordance with the general verdict.
Appellee’s counsel concede that the verdict cannot rest upon the fifth paragraph of complaint, and this paragraph will not receive further consideration.
The security of any place in which a number of co-laborers
In speaking of the duty of the company to warn an employe at work upon the track, in the case of Aerkfetz v. Humphreys (1892), 145 U. S. 418, 420, 12 Sup. Ct. 835, 36 L. Ed. 758, Justice Brewer said: “The engine was moving slowly, so slowly that any ordinary attention on the part of the plaintiff to that which he knew was a part of the constant business of the yard would have made him aware of the ap
So in this case wg may say with even better assurance that appellant was guilty of no negligence in failing to employ extraordinary precautions to discover and give notice of danger from this slowly-moving engine to men employed in the vicinity of the track, to whom no danger could have been reasonably apprehended. The finding of the jury that Romel or Taylor should have preceded the engine as it moved eastward was without the issues, and without influence upon the questions for decision.
The judgment is reversed, with directions to sustain appellant ’s motion for judgment in its favor upon the answers of the jury to interrogatories.