145 Ind. 551 | Ind. | 1896
— The appellee, as the administrator of Patrick J. Finney, sued to recover damages growing out of the death of his decedent, through the alleged negligence of the appellant. The complaint, among other things, avers that the appellant is a corporation and operates a railroad running from Pittsburgh to Chicago through Columbia. City and Fort Wayne, Indiana; “that on the 5th day of April, 1890, at and near the defendant’s, station at Columbia. City, the defendant carelessly and negligently maintained a water plug so near its track that a brakeman, standing upon, and climbing up, on the side of cars, would come in contact with said water plug and strike against the same; that the defendant, knowing said water plug to be dangerous to its servants in working upon and climbing over its cars in passing said, water plug, unlawfully and negligently, on said day, carelessly maintained said water plug in said dangerous position, and ordered and directed said Patrick J. Finney to go upon its freight train on said day, and work upon and brake upon the same, and did negligently direct the said Patrick J. Finney, wh'o was then and there in the employ of the defendant as its brakeman on said train, to climb up and over and go upon the said train while passing by said water plug; that,
It is also alleged that the deceased, “did not know, nor remember, nor had he any reasonable opportunity of knowing or remembering, that said water plug and its pipes, braces, and supports thereto attached, were so near to the tracks of said railroad as to strike him while he was discharging his duty on said train, and because his mind was so absorbed in the discharge of his duties he did not, nor could not, know, or remember, that he was passing said plug, or that the same would strike him before he could climb up to and get upon the top of the train.”
To this complaint the appellant filed an answer in denial, and a trial resulted, in the jury returning a general verdict for $5,000.00, with answers to interrogatories. Over appellant’s motion for a new trial, which assigned, among other reasons, that the verdict was not supported by sufficient evidence1, and that the
It is strenuously insisted by appellant’s learned counsel, that the verdict of the jury is not supported by the evidence, and that the appellee has wholly failed thereunder to sustain his alleged causé of action.
The material facts in the case, established by the evidence, as favorably to the appellee as he can insist, and in part found by.the jury in answers to interrogatories, m.a,y be summarized as follows: Appellee’s decedent was employed and entered the services of appellant in September, 1889, as brakeman on its freight trains running over its road. At the time of his employment he was twenty-two years of age, and continued in the service of appellant until April 5, 1890, the date of his death. The railroad company, at and before the time of the employment of the deceased, maintained water plugs, or water cranes, on its line of railway for the purpose of supplying its trains with water, one of which was erected and maintained by it at Columbia City, Indiana, which is a station on its line of railway. This latter crane was about seventeen or eighteen feet high, and was obvious to persons and was in plain view for a distance of one-half mile, to all persons operating the train upon which the decedent was braking at the time of the accident. Said plug stood about four feet and three and a half inches from the railroad track, the upper part leaning about eight inches towards the t-rfick, or, in other words, deviating about that much from the plumb line. The deceased had passed this plug and had an opportunity of seeing the same almost, daily in daylight each month for a period of five or six months immediately prior to his death. It was his duty as a brakeman, it appears, when his train was passing a
Considered in the light of the law, which must control the case at bar, we are of the opinion,' under the facts, that the jury was not authorized in finding a verdict in favor of the appellee. Assuming, without deciding, that the appellant was chargeable with actionable negligence in maintaining the water crane in the manner and in the condition shown, still, there is an absence of evidence showing freedom from contributory negligence upon the part of the deceased in
The deceased had been in the employ of the appellant for a period of six months, immediately preceding his death, during which time he had passed over the road, on his train, and passed the water plug in controversy, repeatedly, in daylight, each month. He thereby had the opportunity of seeing the crane and apprising himself of its close proximity to the track; and any danger that might result therefrom by reason of this fact, in descending by the car ladder from the train when it was passing the plug.
The latter was open and “obvious” to all, and from its height could be plainly seen for a distance of a half mile by all persons operating the train upon which the deceased was employed as brakeman on the day of the fatal occurrence. On that day, it appears that when approaching the station of Columbia City, he, in the discharge of his duty, went upon the top of the cars, and there remained until the train, which a.t the time was running at the rate of about fifteen miles per
Everything, as it appears, was open and visible to the decedent; he was a man of twenty-two years of age, and had he used his senses and faculties with which it is presumed nature had endowed him, we think, he would have escaped the danger to which, it
In Brasil Block Coal Co. v. Hoodlet, 129 Ind. 327, this court said: “The law requires that men shall use the senses with which nature has endowed them, and when, without excuse, one fails to do so, and is injured in consequence, he alone must suffer the consequences.” See Salem, etc., Stone Co. v. O’Brien, 12 Ind. App. 217.
In no' case will the master be held liable to the servant where the latter brings injury upon himself which he might have avoided by the exercise of reasonable care and prudence. Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151.
In the case of O’Neal v. Chicago, etc., R. W. Co., supra, the plaintiff, a servant of the company, claimed to have been injured by being thrown from the car by reason of a defective side track. In considering the question this court said: “It is firmly settled in this State that the plaintiff in such a case as this must affirmatively show that he was free from contributory negligence. We can find no direct facts showing that the appellant exercised ordinary care. He was bound to exercise care proportionate to the danger of his service. Ee toas bound to know what was open and obvious, and, as it is expressly and directly stated as a fact that the condition of the side track was ‘open and obvious,’ toe must presume that he had notice. Having this notice, he was bound to exercise care to avoid being thrown from the car by the ‘jerking and lurching motion,’ caused by the uneven and insecurely fastened track.
In like manner and for the same reason, we may affirm that appellee’s decedent did not, under the facts, observe his surroundings or exert the care required of him under the law; and hence, in the eye of the latter, he was chargeable with contributory negligence, and the allegations in the complaint, to this extent at least, are not sustained by the evidence.
It is also averred in the complaint that appellant ordered and directed Finney “to climb up and go upon the train when it was passing the water plug,” and that in obedience to such orders he “did climb up and stood upon the side of said train in the- faithful discharge of his duties as brakeman.” The evidence fails to establish any such a state of facts as these. As we have heretofore stated, the accident occurred as the deceased was attempting to descend to the caboose, upon his own volition, and not under or by any direction of th'e appellant.
We are unable to discover, in this cause, any evidence in the record from which a reasonable inference can fairly arise, that appellee’s decedent was in the exercise of due and ordinary care at the time of the fatal accident.
The jury was not authorized, arbitrarily, without evidence, to infer the absence of contributory negligence upon the part of the deceased servant.
The following additional cases are in line with the reasoning in the case at bar, and lend support to the conclusion reached. Lovejoy v. Boston, etc., R. R. Co.,
The judgment is reversed, and the cause is- remanded, with instructions to the lower court to sustain the motion for a new trial.