55 Ind. 45 | Ind. | 1876
This was an action, by the appellee, against the appellants, as contractors in the construction of the Chicago and Canada Southern Railroad, to recover damages from them for their alleged careless, negligent and wrongful acts, whereby the appellee lost one of his legs, and was otherwise permanently disabled.
The action was commenced in the Laporte circuit court, and the same changed to the St. Joseph circuit court. There have been two trials of the cause. The first was had upon a complaint containing but one paragraph, which resulted in a verdict for the appellee, in the sum of three thousand five hundred dollars. A new trial was granted. Before the second trial, the appellee, upon leave granted, filed a second paragraph. The second trial resulted in a verdict and judgment, in favor of appellee, in the sum of four thousand dollars.
The first paragraph charges, in substance, that the appellee was an infant of the age of sixteen years, at the time of bringing this action. That he was employed by the appellants to do and perform a certain kind of work, viz., to fasten chains to cars whilst standing still, which work was not hazardous. That whilst his employment for that work was running, he was compelled, by the ap
The second substantially charges, that, at the time the appellee was employed by the appellants; he was of tender years—aged fifteen—and was imprudently, negligently and carelessly set to work, in an unsuitable, unsafe and dangerous place, by the appellants, without giving him sufficient caution, warning or instruction; which place was in space about five feet wide, between two trains of eai-s, which trains of cars were constantly moving in opposite directions, and there placed him in charge of a horse which was wild, fractious and unused to the business. That the two tracks were made on a high embankment, and the cars were operated by steam-power. - That, whilst the appellee was using due caution, he was thrown down, his legs drawn beneath the iron wheels of the cars, and crushed, causing one of them to be amputated. Judgment was asked for ten thousand dollars.
There was no demurrer to the first paragraph, and no motion in arrest of judgment in the court below ; nor is it assigned for error, in this court, that such paragraph does not contain facts sufficient to constitute a cause of action. Hence, no question is presented in reference to its sufficiency. Buskirk Prac.
The errors assigned call in question the action of the court, in overruling a demurrer to the second paragraph of the complaint, in sustaining a demurrer to the second paragraph of the answer, and in overruling a motion for a new trial.
We proceed to inquire whether the court erred, in sustaining a demurrer to the second paragraph of the complaint.
The paragraph in question is, in principle and substance, the same as that in Coombs v. New Bedford Cordage Company, 102 Mass. 572, the syllabus of which case is as follows:
“ The fact that, very near where a workman is voluntarily employed in a manufactory, machinery not connected with his work is in motion, the dangerous nature of which is visible and constant, is not conclusive that he has taken on himself the risk of being injured by it, in modification of the implied contract' of his employer to provide for him a reasonably safe place in which to do his work; and if, through inattention to the danger, he meets with such an injury while doing his work, and sues his employer therefor, the questions whether he met with it with due care on his own part, and by reason of the neglect of his employer to give him suitable notice of the danger, are for the jury; and the facts of his youth and inexperience, and the directions previously given to him by agents of the employer about the manner of doing the work, are to be considered upon the question of due notice; * * *.
“ Evidence that a boy less than fourteen years old and unacquainted with machinery, after being employed in a cordage factory only one day, * _ * * and never having been in a similar employment before, was set to work by his employer in a room where the noise was two or three times as loud as in railroad cars, * * * and his duty was to break off the ribbon of hemp at stated times by taking it in both his hands and drawing them apart in a manner in which he had been instructed;
This exposition of the law is based upon the theory that an employer is bound, under the law, to give a person of tender years, whom he employs, due caution, explanation and instruction, when he sets him to work in a dangerous and hazardous place. That the mere fact that he could have seen that such place was dangerous and hazardous, by exercising his faculty of sight, is not, of itself, sufficient evidence to hold an employee accountable for contributory negligence ; but that it is a question for the jury to determine from all the facts.
In the above case the English and American authorities were fully reviewed, and, in our judgment, support the ruling. We cite the following cases as supporting such ruling: Cayzer v. Taylor, 10 Gray, 274; Seaver v. Boston and Maine Railroad, 14 Gray, 466; Snow v. Housa
There are other adjudged cases, in England and in this country, which hold otherwise, but it is believed that the decided weight of authority supports the views hereinbefore expressed.
In our opinion, the court committed no error, in overruling the demurrer to the second paragraph of the complaint.
We proceed to the examination of the third and last assignment of error, which is based upon the refusal of the court to grant a new trial.
It is claimed that the court erred, in excluding two questions which were asked Mr. John Caskey, a witness pro
“ I told McKechney I would have to quit, as I did not like to work there on the dump, driving the mule, because I considered it was a dangerous place, and that I did not like to work there. I told McKechney this, in the forenoon of the first day that I drove the mule on the dump ; he asked me to continue on working, and that he would try to find a man to take my place at noon. I told him that I would not work there in the afternoon'. He then said that he would not beg men, and pay them besides, to work for him. I wrorked one hour in the afternoon and then quit. When I was there the mule was caught several times, once falling upon me in the mud.”
Eor the purpose of impeaching such witness, by proving that he had made statements, out of court, different from those he had testified to, the following questions were asked him upon his cross-examination:
“ Did you not state to Mr. Hill, one of the defendants, on the day you quit work on the dump, that the reason why you quit work was, that the foreman called you a son of a bitch ?
“Did you not, on the occasion of leaving the employment of the defendants, tell them, the defendants, that you left because the foreman of the defendants called you a son of a bitch ? ”
In laying the foundation for the impeachment of a witness, upon the ground that he had made statements, out of court, different from those testified to, the time when, the place where, and the person to whom such statements were made should be clearly stated. The above questions omitted the place where such statements were made, and for this cause, alone, the questions were properly excluded. We do not deem it necessary to consider other objections, that are urged to the competency and materiality of such questions and the answers sought to be elicited.
It is next claimed, that the verdict is not sustained by
There is no error in the record.
The judgment is affirmed, with costs.
Petition for a rehearing overruled.