75 Ind. App. 336 | Ind. Ct. App. | 1920
This was an action for damages for personal injuries sustained by appellee, while in the employ of appellant as a brakeman on a train. The appellant was the receiver of the Chicago and Eastern Illinois Railroad, and as such was managing and operating the same, at the time appellee was injured.
The cause was submitted to the jury upon one paragraph of complaint, the third, to which appellant had unsuccessfully demurred. There was a verdict for appellee in the sum of $5,000, upon which judgment was rendered. The appellant’s motion for a new trial having been overruled, he prosecutes this appeal, and has assigned as error (1) the action of the court in over
We shall first direct our attention to the complaint and its averments.
The material averments of this paragraph of complaint, necessary to be considered in passing upon its sufficiency to withstand a demurrer, were, in substance, as follows: That defendant was the duly appointed and acting receiver of the Chicago and Eastern Illinois Railroad; that said railroad was a common carrier of both freight and passengers for hire; that it was engaged as such carrier in both intrastate and interstate commerce; that a part of its line of road, known as the Mt. Vernon branch, extended from Mount Vernon, Ind., to Ft. Branch, Ind.; that said branch was at all times being used for the transportation of both intrastate and interstate commerce; that on April 17, 1915, plaintiff was in the employ of defendant as a freight brakeman on said branch; that on said day defendant had in use on said branch a certain locomotive and a certain freight car, both of which were used by defendant interchangably in both intrastate and interstate commerce, each of which was in a dangerous and defective condition, in this, that they were equipped with a coupler which would not couple automatically by impact, as required by law; that there was so much lateral motion in each of said couplers that when said engine and said car were moved together for the purpose of coupling them together, the said couplers did not come in proper contact with each other to make a coupling, all of which was known to defendant and his switching foreman; that on said day while said defendant was so engaged in interstate commerce it became appellee’s duty, by the order and direction of the appellant’s switching foreman, to whose orders and directions appellee was
The appellant contends that the complaint is insufficient because: (1) No facts are charged which show any duty neglected or violated; and (2) because it shows that the proximate cause of the injury was the negligence of the appellee, in attempting to shove said coupler into position to make the said coupling, at the time, and in the manner he did, as averred in said complaint.
Section 2 of the federal Safety Appliance Act (§8606 U. S. Comp. Stat. 1916, 27 Stat. at L. 531) is as follows: “That on and after the first day of January eighteen hundred and ninety eight, it shall be unlawful for any.. such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.”
Appellant’s motion for a new trial contains numerous specifications of alleged errors occurring at the trial, but on this appeal he has presented only those relating to, (1) the sufficiency of the evidence to sustain the verdict; (2) error in giving certain instructions; (3) error in refusing certain instructions; (4) error in admitting certain testimony; and (5) error in overruling motion to strike out certain testimony. All other alleged errors are therefore waived.
We shall first consider the alleged errors in the giving of instructions.
Appellant complains of the giving of instructions numbered 4, 5, 6 and 13, given at the request of appellee.
The appellant had alleged in his complaint that, in obedience to an order of his foreman, he had undertaken to couple said engine and car.
In instructions Nos. 6 and 13 given by the court in this case, at the request of appellee, the jury was told that under the issues in this case and upon the facts in evidence, contributory negligence was not a defense. This was error. Whether the appellee was guilty of contributory negligence, was, upon the record before
Of the instructions tendered by appellant, and which were by the court refused, the tenth should have been given. The other instructions tendered and refused of which appellant complains, were either inaccurate or erroneous, as invading the province of the jury.
For the errors above indicated the judgment is reversed and this cause is remanded with directions to sustain appellant’s motion for a new trial, and for further proceedings.