132 Ind. 334 | Ind. | 1892
— The substance of the appellant's complaint is this: He entered the service of the appellee as a brakeman, and his duties required him to set the brakes upon the trains on which he was required to work. On the 13th day of December, 1887, he was working on a freight train composed of many cars. He was signaled to set the brake. He undertook to discharge this duty in obedience to the signal,
We regard the answer as a mere argumentative denial, and thus regarded there was no error in overruling the demurrer. It certainly denies the material allegation of the
The general verdict was in favor of the appellant, but the trial court rendered judgment upon the answers of the jury to the special interrogatories addressed to them, so that the principal questions arise upon the facts exhibited in the answers of the jury. In answer to the second interrogatory it is stated that the plaintiff received a copy of the defendant’s rules, and agreed to observe them. In the answer to the third and fourth interrogatories the jury gave the plaintiff’s age at the time of entering the defendant’s service, putting it at thirty-two years, and they declare that he was a man of ordinary capacity in full possession of his faculties. The answer to the fifth interrogatory shows that the brake was out.of order because the “ pawl was loose.” The answer to the sixth interrogatory is that “ the brake fixtures were of a pattern in general use by first-class railroad companies, and when in repair was a good and sufficient brake.” The car to which the brake was attached is shown by the answer to the sixth interrogatory to have been made part of the train on the day of the accident. The answers to the eighth and ninth interrogatories show how many cars were in the train at Elkhart and Urbana. By the answers to the ninth and tenth interrogatories the car is shown to have come under the charge of the plaintiff at Elkhart, and to have been upon other roads until it came into his charge for thirty days. The jury were asked by the eleventh interrogatory if the defect in the brake, if there was any, could not have been readily observed by the plaintiff, and they answered, “ Was not shown.” In answer to the twelfth interrogatory the jury declared that it was the plaintiff’s duty, according to the company’s book of rules, to examine the brake and ascertain if it was in repair and fit for use. The number of stations the train stopped at was asked for in the thirteenth interrogatory, but the jury answered that this was not shown.
The fifteenth interrogatory asked the jury to find how long it was after the plaintiff and his train crew took charge of the train at Elkhart until the train left that place, and the jury answered that it was not shown. In answer to the sixteenth, twentieth and twenty-third interrogatories, the juiy stated that the train stopped at Goshen about thirty minutes, at Warsaw about the same length of time, and at North Manchester about thirty-five minutes. The answer to the twenty-fifth interrogatory shows that the plaintiff did not examine the brakes at any of the stopping places, and the answer to the twenty-sixth interrogatory is substantially to the same effect. The answer to the twenty-eighth is to the effect that if the plaintiff had made the examination required of him, the defect could have been readily discovered. The answer to the twenty-ninth interrogatory is, in effect, the same as the answer to the twelfth, and the answers to the thirtieth and thirty-first declare that no report was ever made by the plaintiff of the condition of the brake until after the accident.
The jury, in answer to the thirty-second interrogatory, say that it “ is not stated ” whether the plaintiff had as much knowledge of the condition of the brake as the defendant. In the thirty-third interrogatory the jury were asked what means the defendant had of knowing that the brake was out of repair, and they answered, “ Not given.” The answer to the thirty-fourth interrogatory is that the defendant had no actual knowledge of the brake being out of repair, and the answer to the thirty-fifth interrogatory is to the same effect.
It is necessary to consider some questions of practice presented by the appellant’s counsel before entering upon a discussion of the principal questions in the case, inasmuch as those questions of practice relate to the construction of the answers to the interrogatories and their influence as against
It is proper to say in this connection that the appellee’s counsel are in error in assuming that the absence from the special answers of facts essential to a recovery justifies the conclusion that the plaintiff failed to prove such facts. This view is founded on a radical error, for the rule is that the general verdict finds all facts in favor of the party for whom it is given, unless the answers affirmatively show that such facts do not exist or were not proved. Town of Poseyville v. Lewis, 126 Ind. 80; Rogers v. Leyden, 127 Ind. 50 (59). If the facts stated in the answers of the jury show that the fault of the plaintiff proximately contributed to his injury, then there can be no recovery, and the ruling of the trial court was right even if it be conceded that the defendant was guilty of negligence in not providing the plaintiff with a safe working place and appliances. To the question of the appellant’s contributory fault we first address our discussion.-
It is settled law that it .is an employer’s duty to make x’easonable rules for the conduct of business, and it is equally settled that an employee who contracts to obey those rules
It is evident that a brakeman receiving a car into a train out on the road can not be held to the same degree of care as a regular inspector or a man in a shop properly supplied with tools. But the twenty-eighth answer does not stand alone, so that we can not fully apply the rules we have stated. The answer to the eleventh interrogatory, as we have seen, declares that whether the defect could have been discovered had an examination been made “was not shown.” If it was not shown, then, it was, so far as this case is concerned, as if no discovery could have been made, for as the general verdict was for the plaintiff, all material facts not stated in the answers must be deemed to have been found in his favor. We can not escape the conclusion that the one answer nullifies the other, and leaves the general verdict effective upon the point covered by the interrogatories. As the plaintiff has the general verdict in his favor, and' as the answers are antagonistic, we can not say from the mere fact that the plaintiff did not make an inspection, that there was such contributory negligence as bars a recovery. The case is not that of a special verdict, but of answers to interrogatories relied upon to defeat a general verdict, and we can not assume, or infer, as against the general verdict, that the fault of the plaintiff proximately contributed to his injury.
It has been held many times that it is not sufficient that there be some fault or negligence on the part of the plaintiff, for there may be fault that does not contribute to the injury. Nave v. Flack, 90 Ind. 205 (211); Louisville, etc., R. W. Co. v. Richardson, 66 Ind. 43, 48 (32 Am. R. 94). Judge Cooley’s statement of the rule is this : “ The negligence that will defeat a recovery must be such as proximately contributed to the injury.” Cooley Torts, 679. In the case of Pennsylvania Company v. Whitcomb, supra, many authorities were cited to the effect that the failure
The next question requiring consideration is whether the plaintiff assumed the risk of the breaking of the pawl, or ratchet, as an incident of the service into which he voluntarily entered; Here, again, we encounter the general verdict with its wide effect, and are required to decide the question stated upon the facts contained in the answers of the jury under the rule that the verdict finds material facts in favor of the plaintiff except so far as the answers state facts antagonistic to the verdict. The question does not come to us, it is pi’oper to say, as the question came in the case of the Chicago, etc., R. R. Co. v. Fry, 131 Ind. 318. We can find no specific fact which authox-izes us, as against the general verdict, to adjudge that the appellant assumed the danger of the breaking of the pawl or ratchet as one of the perils of his employment. If there were no genei-a 1 verdict we might, perhaps, adjudge that the peril was incident to the service, but the genex’al verdict stands in the way, and we can not so adjudge, since we can not say that the defect was not one against which it was the employer’s duty to provide. We fully recognize the rule that there are perils incident to the service a brakeman enters which he assumes, and we fully approve the doctrine of such cases as Louisville, etc., R. W. Co. v. Frawley, 110 Ind. 18; Jenney, etc., Co. v. Murphy, 115 Ind. 566; Umback v. Lake Shore, etc., R. W. Co., 83 Ind. 191; Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440; Brazil, etc., Co. v. Hoodlet, 129 Ind. 327; Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20. But, while we fully recognize the rule stated, tve can not be unmindful of the established rule that the employer must use reasonable care to provide his employees with a safe working place and appliances. Ohio, etc., R. W. Co. v. Pearcy, 128 Ind. 197; Rogers v. Leyden, 127 Ind. 50; Louisville, etc., R. W. Co. v. Corps, 124 Ind. 427; Taylor v. Evansville,
The appellee’s counsel tacitly assume that the special answers show that the employee had knowledge of the defect, but this, as we have elsewhere indicated, is an undue assumption. The general verdict necessarily finds that the appellant had no knowledge of the defect, since this is directly and explicitly alleged in the complaint. This allegation was an essential one. It has often been decided that an employee who sues the employer must aver that he did not know of the defect in the appliances furnished him which caused his injury. Louisville, etc., R. R. Co. v. Corps, supra; Louisville, etc., R. W. Co. v. Sandford, 117 Ind. 265; Brazil, etc., Co. v. Young, 117 Ind. 520; Lake Shore, etc., R. W. Co. v. Stupak, 108 Ind. 1; Indiana, etc., R. W. Co. v.
It is probably true that where the means and opportunities of knowledge are equally open to employer and employee they stand on common ground, and that the employee can not, in such a case, maintain an action against his employer. Brazil, etc., Co. v. Hoodlet, supra (p. 333); Griffin v. Ohio, etc., R. W. Co., 124 Ind. 326; Ballou v. Chicago, etc., R. W. Co., 54 Wis. 257 (5 Am. & Eng. R. W. Cases, 460). But we ar,e compelled to say here, as we have so often said in reference to other points, that the general verdict forbids us from assuming that the appellant and the appellee stood on common ground. There are no facts not reconcilable with the general verdict authorizing us to adjudge that the means and opportunities of knowledge were equal. We can not conclude from the nature of the defect in the brake that it was not a latent one which only a minute inspection, would reveal. For anything that appears, the opportunities for knowledge on the part of the employer were far superior to those of a brakeman engaged at work upon a train, moving over the road. We can not say precisely what he was doing, or was bound to do, either while the train was in motion or was stopping at the various stations, although we do know, as matter of common knowledge, that a brakeman on a train out upon the road necessarily has-other duties to perform than those of inspection.
The general verdict necessarily decides that the appellee was negligent and that the appellant was not guilty of contributory negligence. We can not, as appellee’s counsel ask us to do, adjudge that the facts stated in the answers so clearly show negligence as to require us to declare that they are so invincibly hostile to the general verdict as to demand its overthrow. Fort Wayne, etc., R. R. Co. v. Beyerle, 110 Ind. 100, and cases cited.
Our judgment is that the trial court erred in awarding
Judgment reversed, with instructions to the trial court to award a new trial.