176 Ind. 532 | Ind. | 1911
This action was brought by appellee, a motorman on one of appellant’s street-cars, to recover damages for personal injuries sustained when his car left the track. The action was based on the theory that the street-ear left the track because the rotten ties gave way, and that appellant had knowledge of the condition of the track and the ties in time to repair them, but that appellee had no knowledge of such defective condition.
A trial of the cause resulted in a- verdict in favor of appellee, and over a motion for a new trial judgment was rendered in his favor.
The only error assigned and not waived calls in question the action of the court in overruling appellant’s motion for a new trial.
Said clause is a reenactment by the legislature of the
Instructions nine and thirteen, therefore, are correct statements of the law, at least so far as they go.
Appellant cites the case of Malott v. Sample (1905), 164 Ind. 645, where it is held that before the master can properly be charged with negligence for failure to repair, it is necessary to show that the master had knowledge, actual or constructive, of the defect. There is nothing in the ease cited to show that the instruction was erroneous. It is the law in this State, in a case like the one before us, that the employe must prove not only that the alleged defect existed, but that the employer had knowledge thereof, actual or constructive, long enough before the injury t# have repaired the defect, or to have given warning to the employe, and that he failed to do so. It is held that the rule of constructive knowledge of the employer applies only to such defects as he might have discovered by the exercise of ordinary care
It may be that appellant did not have time to repair said track after said notice was received by the track foreman, and before appellee was injured, but it does not necessarily follow that appellant did not have time to warn appellee of said defect before he was injured. The court in another instruction said, in effect, to the jury that if appellant hadj no knowledge of said defects in the track, and they could not have been discovered by the exercise of ordinary care in time to be repaired before appellee’s injury, then appellant was not guilty of negligence, and the verdict should be for appellant. This instruction was more favorable to appellant than the law authorized, because it ignored entirely appellant’s duty to warn appellee of said defect, if ascertained before the injury, and there was time to give such warning, even if there was not time to impair the track. Chicago, etc., R. Co. v. Wilfong, supra, and authorities cited.
In the case of Nave v. Flack (1883), 90 Ind. 205, 211, 46 Am. Rep. 205, 209, this court said: “A contribution to an injury does not preclude a recovery unless it was a wrongful or negligent contribution. Shearman & Redfield, Negligence (3d ed.) §28.” See 1 Shearman & Redfield, Negligence (5th ed.) §85. The sections of Shearman & Redfield on Negligence cited contain the following, and it is quoted with approval in Dufour v. Central Pac. R. Co. (1885), 67 Cal. 319, 322, 7 Pac. 769: “The plaintiff’s right to recover is not affected by his having contributed to his injury, unless he was in fault in so doing.”
An instruction in substantially the same language was sustained in the case of City of Wyandotte v. White (1874), 13 Kan. 191, 194, 195.
In the case of Savannah, etc., R. Co. v. Austin (1898), 104 Ga. 614, 619, 30 S. E. 770, 771, the court said of the words “without fault,” when used with reference to an employe: “This court has in many eases construed them to mean the same as ‘without negligence,’ and has used ‘fault’ and ‘negligence’ as being in this connection synonymous.” See, also, Ohio, etc., R. Co. v. Walker (1888), 113 Ind. 196, 198, 3 Am. St. 638, and cases cited; George H. Hammond & Co. v. Schweitzer (1886), 112 Ind. 246, 247, and cases cited; Evansville, etc., R. Co. v. Weikle (1893), 6 Ind. App. 340, 342, and cases cited; City of Lebanon v. McCoy (1895), 12 Ind. App. 500, 502; Goldrick v. Union R. Co. (1897), 20 R. I. 128, 129, 37 Atl. 635; Central R., etc., Co. v. Lanier (1889),
Appellant, however, claims that there was evidence to the effect that appellee, as motorman, “had entire charge of the speed at which the car was run; that he frequently ran very fast; that the track curved as it followed the river bank; that he had been warned that his car would go over into the river some day; that he was running the car at the rate of from twenty to twenty-five miles an hour on this occasion, and that the ear jumped the track at a curve,” and that therefore “said instruction was erroneous.” It is not necessary to determine whether there was any evidence to the effect claimed by appellant, for the reason that if there was, said instruction would not be erroneous on that account. Whether appellee was guilty of contributory negligence was a question of fact to be determined by the jury from the evidence in the case, and said instruction in no way took that question from the jury, or otherwise invaded the province of the jury.
It is said in the case of Osborne v. Van Dyke (1901), 113 Iowa 557, 559, 85 N. W. 784, 785: “An ‘accident’ may be defined as an event happening unexpectedly and without fault. Leame v. Bray [1803], 3 East 593.”
The theory of the instruction given is that in such a ease the evidence does not show that the injury was caused by the negligence of appellant as alleged in the complaint. Under the evidence, the instruction given was as favorable to appellant as the one refused. No reversible error was committed by the court in refusing said instruction.
Judgment affirmed.