172 Ind. 548 | Ind. | 1909
Appellee brought this action against appellant to recover damages for personal injuries sustained by him while in the employ of appellant. Appellant’s demurrer for want of facts to the second amended complaint was overruled. The cause was tried by jury, and a verdict returned in favor of appellee. Over a motion for a new trial judgment was rendered on the general verdict, in favor of appellee.
The allegations of the complaint show that appellant made a fill and constructed the path thereon along the side of the track for the use of its employes, that appellee and other employes used the path for several months, and that it was apparently safe, sound, solid and firm so far as could be seen from the surface by a reasonably careful and prudent person, but this does not show, as claimed by appellant, that the alleged defect in the fill which supported the path was such that ordinary care on the part of the appellee would not disclose it, nor that appellee had no knowledge thereof, for it is expressly alleged in the complaint that appellant made said fill of loose dirt, and knew for many months prior to appellee’s injury that the same was liable to give way at any time, and that “notwithstanding such knowledge, defendant carelessly, negligently and recklessly failed to make said fill under said path sound, and to make and keep said path safe, and allowed the dirt and filling thereunder to crumble and fail in its support of said path, so as to permit said path to give way under plaintiff’s weight.” It is also alleged that appellant knew of said defect long before appellee’s injury, and that appellee had no knowledge thereof. Said complaint, while it contains needless repetitions, is not open to the objections urged against it.
The causes assigned for a new tidal call in question the action of the court in giving to the jury instructions seven and eight.
The burden of proving nonassumption of such risk was upon appellee.
As said instructions informed the jury in plain terms that appellant would be liable to appellee in damages if the jury found from the evidence the facts therein stated, without regard to the actual or constructive knowledge of the appellee, they were clearly erroneous. Chicago, etc., R. Co. v. Glover, supra, page 587, and cases cited; Indianapolis, etc., Transit Co. v. Foreman, supra, page 101; Grand Trunk, etc., R. Co. v. Melrose, supra, pages 671, 672, and cases cited. Said instructions were erroneous for the further reason that each omitted the essential fact of appellant’s actual or constructive knowledge of said alleged defects in said path.
It follows that the court erred in overruling appellant’s motion for a new trial.
Other questions are argued; but, as they may not arise upon another trial, they are not determined.