This appeal is from a judgment and order denying a motion for a new trial. The first ground upon which appellant’s counsel insists that the judgment should be reversed is, that the complaint does not state facts sufficient to constitute a cause of action. The plaintiff alleges that he was in the employ of the defendant as brakeman and baggage-master, and was seriously injured by the train being thrown from the track by a bull which had intruded upon it. He further alleges that the fences inclosing the track were insufficient to prevent the intrusion of cattle thereon, and that the cow-catcher was not in a position to remove obstacles from the track; that the defendant knew of the defects in the fence, and the improper position of the cow-catcher. But he does not allege that he was ignorant of the defects in the fence, or of the improper position of the cow-catcher; and the omission so to allege constitutes, as appellant contends, a failure to state facts sufficient to constitute a cause of action.
In McGlynn v. Brodie,
While it is sufficiently clear that the court then
In Robinson v. W. P. R. R. Co.,
In McQuilken v. C. P. R. R. Co.,
In Indianapolis & C. R. R. Co. v. Klein,
In Crane v. Mo. Pac. R. R. Co.,
In Lee v. Troy Citizens’ Gas Light Co.,
Our conclusion is, that the demurrer was properly overruled.
On the trial, while the plaintiff was testifying as a witness in his own behalf, he was asked by his counsel, “Did you ever know of any defect in the fence?”
Defendant’s counsel objected to the question “as incompetent and inadmissible under the pleadings,” it being “ nowhere alleged in the complaint that there was any defect in the structure of the fence that was unknown to plaintiff.” The objection was overruled, and before the witness answered the question, counsel for plaintiff put the question in the following form: “If there were any defects in the fence along the right of way, were any such defects known to you up to the seventeenth day of April, 1882,—that is, the time when this suit was commenced ?” The witness answered, “No, sir.”
Witness.—“They were not.”
It does not appear that counsel for defendant renewed his objection to the question as it was finally put and answered, but we think he should, nevertheless, have the benefit of his objection and exception, as the change in the form of the question was one of phraseology only.
If the question was irrelevant, the objection was improperly overruled; otherwise not. We think it was relevant; for while, as has already been shown, the complaint contained no allegation of plaintiff’s ignorance of the defects in the fence, the answer “alleges and charges the fact to be, that whatever injuries were sustained by said plaintiff were caused solely and wholly by his own carelessness and negligence, and that but for his own carelessness and negligence he would not have been injured.” This allegation must be deemed denied by plaintiff, and it raised an issue to which the evidence was applicable, and if so, such evidence was not irrelevant nor incompetent.
We perceive no error in that ruling.
After the plaintiff rested, defendant’s counsel moved for a nonsuit, on the grounds: 1. That there was no evidence that the train was not properly run, or that plaintiff did not know the manner in which it was run; that is, with no cow-catcher in front; 2. That the evidence shows that plaintiff knew of the condition of the fence.
Conceding that the evidence shows that plaintiff knew of the preposterous manner in which the train upon which he was injured was operated, and knew that cattle had previously intruded upon the track, it does not, in our opinion, follow that a nonsuit should have been granted. The right of a servant to recover on account of the master’s negligence is not affected by notice of any defects other than such as the servant ought, in the exercise of ordinary prudence, to have foreseen might endanger his safety. (Shearman and Redfield on Eegli
It has been expressly held that mere continuance of a servant in his work in the face of a known danger only raises a question for the jury. (McMahon v. Port Henry Iron Co.,
In fact, judgments for damages have been sustained in many cases where the servant had knowledge of the particular defect or danger which resulted in his injury. ( Clarke v. Holmes, reported in 2 Seymour on Negligence, 953; Fairbank v. Haentzsche,
In Clarke v. Holmes, supra, Cockburn, C. J., said: “But the question whether the injury of which plaintiff complains is to be ascribed wholly to the negligence of the defendant, or whether the plaintiff had any share in bringing it about, is one wholly for the jury.”
The motion for nonsuit was properly overruled.
Consistently with the views above expressed, we cannot disturb the order denying the motion for a new trial. There is no evidence that the plaintiff knew of the particular defect or danger which resulted in his injury; He knew that cattle had previously been on the track, but he did not know that effective measures had not been taken before the occurrence of which he complains, to prevent their coming on. We think he had a right to assume that such measures had been taken as would prevent the recurrence of that danger. At least,, there was, evidence to justify the jury in finding that he had no knowledge of the particular defect or danger which resulted in his injury.
In Trask v. Cal. S. R. R. Co.,
“It has been often said that the master is not liable for defects in such things to a servant whose means of knowledge thereof were equal to those of the master. But this is an erroneous statement. The master has no right to assume that the servant will use such means of knowledge, because it is not part of the duty of the servant to inquire into the sufficiency of these things. The servant has a right to rely upon the master’s inquiry, because it is the master’s duty so to inquire; and the servant may justly assume that all these things are fit and suitable for the use which he is directed to make of them. The true definition is, that when circumstances make it the duty of the servant to inquire, it is contributory negligence on his part not to inquire. A servant is chargeable with actual notice as to matters concerning which it was his duty to inquire; and especially should this rule be applied where the servant’s action is founded upon the assumption that the master ought to have known of something which he did not actually know.” (Shearman and Redfield on Negligence, sec. 287.)
We think that rule fairly deducible from a majority of the cases in which the question was involved. There are cases, however, to the contrary, at least, seemingly so, among which is Sweeney v. C. P. R. R. Co.,
In that case, the motion for a new trial was granted. In this case, it was denied. In that case, it does not appear that the road had ever been fenced,—a fact of which an employee might more reasonably be supposed to take notice than of the fact that there was a defect in an existing fence.
And a very large discretion has been accorded to trial courts in the matter of granting or refusing new trials in this state. But we will not attempt to parry the force of that decision by suggesting a distinction which is not obvious.
The principle upon which the court proceeded in that case is not, in our opinion, supported by the weight of authority, and does not commend itself to our favorable consideration.
We think the question of the plaintiff’s knowledge of the danger to which he was exposed by reason of the omission to fence the road was one for the jury.
In this case we are satisfied that the verdict of the jury ought not to be disturbed on the ground that it was not justified by the evidence.
It appears to us that the questions discussed were fairly submitted to the jury by the court in its instructions.
Judgment and order affirmed.'
Thornton, J., Beatty, C. J., and Works, J., concurred.