73 Ind. App. 449 | Ind. Ct. App. | 1920
Statement by
This action was instituted by appellee against appellant to recover damages for personal injuries. So much of the complaint as is necessary to an understanding of the questions presented is as follows: “Defendant is a common carrier by rail, engaged in interstate commerce, and maintains a switch yard at Richmond, Indiana. Certain tracks in said yard are known as repair tracks, on which defend
“For the purpose of repairing cars the defendant furnished and provided the plaintiff, and other employes of defendant, with a certain four-sided wooden ladder, which was constructed of four upright pieces, forming the corners thereof and held together by means of strips of wood nailed or fastened to said upright pieces on all sides of said ladder from the bottom to the top, the strips being from ten to twenty inches apart. On said day said ladder was, and for a long time prior thereto had been, in a loose, rickety and defective condition. The defective condition of the ladder was well known to the defendant, and had been known to the defendant long enough to have been repaired. The plaintiff had not worked with said ladder before and did not know, and had no means of knowing, the loose, rickety and defective condition of the ladder at the time he received his injuries. Notwithstanding the defective condition-of the ladder, and with knowledge of its condition as -aforesaid, and in a careless and negligent disregard
“It was necessary for plaintiff to use said ladder in the repair of said freight car, and pursuant to his duty as such car repairman, he and another employe of the defendant, about to begin work in the repair of said freight car, placed the ladder at the side of the freight car; and the plaintiff and said other employe climbed up said- ladder for the purpose of making said repairs. Shortly afterward plaintiff started to climb down the ladder to the ground; and thereupon, by reason of the loose, rickety and defective condition of said ladder, it began to shake, wabble and careen to such an extent that the plaintiff thereby and by reason thereof was caused to lose his foothold upon said ladder, and thereby and solely by reason thereof was thrown to the ground with great force and violence and was thereby greatly bruised and injured, his coccyx was thereby and by reason thereof fractured, and broken from the sacrum.”
The original complaint, on the theory of negligence at common law, was filed October 4, 1915. On April 20, 1916, appellee filed a second paragraph of complaint under the federal Employers’ Liability Act. The first paragraph of complaint was dismissed and the cause was tried on the second paragraph alone, the issue thereon having been formed by the general denial. Verdict and judgment for $800.
Appellant presents, independently of any assignment of error, the contention that the court has no jurisdiction over the subject for the reason that the action was not commenced within two years from the date of the accident.
delivered the opinion of the court:
Judgment affirmed.