177 Ind. 64 | Ind. | 1912
This is the second appeal in this case. Lake Erie, etc., R. Co. v. Hennessey (1906), 38 Ind. App. 574, 78 N. E. 670. Upon the return of the cause to the court below, the complaint was amended to show that appellant knew that appellee was a car inspector for the Chicago, Indiana and Eastern Railroad Company, and that immediately be
This claim is made on the ground that the failure of the brake to work, or hold, was the proximate cause of the injury, under a finding of the jury that the ear had been only about twenty minutes in the possession of appellant, and that the latter did not know of appellee’s presence under the car, or of the defective brake, though the defect was one that could readily be seen without minute examination.
It may be true that this car, being one received from another line of railway within so short a time as twenty minutes, not for the purpose of forwarding, but one consigned to Muncie, which appellant was merely switching, there was not that duty of, or opportunity for inspecting which might otherwise be • required. Louisville, etc., R. Co. v. Bates (1897), 146 Ind. 564, 45 N. E. 108.
It is also true, that since appellee was in a place where his duty required him to be, and was engaged in work which would, necessarily, more or less absorb his attention, it may have been negligence in those having the management of the car, who were, or should have been, aware of his presence, to permit the car to be run upon him while he was so employed, without giving him warning. Lake Erie, etc., R. Co. v. Charman (1903), 161 Ind. 95, 67 N. E. 923; Indiana, etc., R. Co. v. Barnhart (1888), 115 Ind. 399, 400, 16 N. E. 121; Chicago, etc., R. Co. v. Long (1887), 112 Ind. 166, 171, 13 N. E. 659; Goodfellow v. Boston, etc., R.
The jury finds that neither the conductor nor the crew knew that appellee was under the car, and that the condition of the brake was not known before the car was set in motion, though it was one which could be seen by the naked eye without minute examination. In the opinion of the writer, if these findings embrace both actual and constructive notice, there should be a judgment for appellant on
Other interrogatories and answers show that appellee made the inquiry for the purpose of going to the work of inspection, and that in reliance on the answer he received he went at once to that work.
If appellant company, without notice of appellee’s presence, or notice or knowledge as to whether he was engaged in inspecting said cars, owed him a duty not to set any car on the transfer track without warning, and negligently ran the ear against the cars on which he was working, the answers to the interrogatories would not necessarily be in conflict with the general verdict, if it can be said, as a matter of law, that it was negligence per se to set the car in as was done, or that it was negligence, irrespective of the question of notice.
The jury was not instructed on the question of notice or knowledge as embracing constructive notice, and it may be that its finding in fact was on the question of actual notice, ■and the majority of the court are of the opinion that, in the interest of justice, a new trial should be awarded upon the authority of Matchett v. Cincinnati, etc., R. Co. (1892), 132 Ind. 334, 31 N. E. 792; Shoner v. Pennsylvania Co. (1892), 130 Ind. 170, 28 N. E. 613, 29 N. E. 775; Elliott, App. Proc. §563, and cases cited, and Buskirk’s Practice 334.
The eleventh instruction was as follows: “The court instructs you that if you believe from the evidence that the plaintiff at the time and place of the occurrence complained of was in such place and engaged in the examination of ears on the transfer track in question, with the acquiescence, knowledge, consent and permission of the ticket agent, passenger agent or other employe of the Chicago, Indiana and Eastern Railroad Company, or of the defendant company, such fact is not sufficient to create the relation of master and servant between the plaintiff and the defendant company at the place the plaintiff was at the time of the occurrence complained of, and that such fact is not sufficient of itself to create any liability on the part of the defendant company in this action; but it must further appear by a fair preponderance of the evidence that such ticket agent, passenger agent, employe or employes of the Chicago, Indiana and Eastern Railroad Company, or of the defendant company, was or were authorized to employ the plaintiff [or had power and authority from said company to direct plaintiff] to perform the labor in which he was engaged; or you must believe that the plaintiff was expressly employed
As to the question of inferences to be drawn from the inquiry of and answer by the conductor, numerous other conditions are stated, such as the custom of inspecting, the fact that appellee was an inspector, and accustomed to inspect ears on that track at about the same hour daily, and that
We are all of the opinion that the instruction should not have been given, but a majority of the court are of the opinion that, taken with the third, fifth and twelfth instructions, which fully cover the questions of the requirement of the use of the senses, the use of ordinary care, and freedom from contributory negligence, the jury could not have been misled, and there is support in this holding, in view of the repeated holdings that, where the instructions taken as a whole correctly state the law, a judgment will not be reversed because of the omission of some element which is stated in another instruction, but are of the opinion that justice requires that a new trial be granted.
The judgment is reversed, with instructions to the court below to grant appellant a new trial, and for further proceedings not inconsistent with this opinion.
Note.—Reported in 97 N. E. 331. See, also, under (1) 33 Cyc. 866; (2) 27 Cyc. 513; (3) 33 Cyc. 852; 16 Am. St. 250; (4) 33 Cyc. S65; (5) 33 Cyc. 896; (6) 29 Cyc. 489; 36 Am. St. 807; 50 Am. Rep. 569; (7) 3 Cyc. 428; (8) 3 Cyc. 248; (9) 33 Cyc. 910; (10) 38 Cyc. 1782.