163 Ind. 569 | Ind. | 1904
Appellee brought this action to- recover damages for personal injuries received while in the service of appellant as a freight conductor, caused, as he- alleged, by reason of the negligence of the engineer in charge of the engine drawing a train of which appellee was the conductor ; the action being based upon the fourth subdivision of §7083 Burns 1901, being section one of what is known as the employers’ liability act (Acts 1893, p. 294). Appellant’s demurrer for want of facts to each paragraph of the complaint was overruled. A. trial of said cause re-, suited in a verdict in favor of appellee, and, over a motion for a new trial, judgment was rendered against appellant.
The errors assigned and not waived call in question the action of the court in overruling the demurrer to each of the paragraphs of the complaint, the motion to make the second paragraph of the complaint more specific, and the motion for a new trial.
It is insisted by appellant that as it is not alleged in each paragraph of the complaint that appellee was, at the time of the injury complained of, “in the exercise of due care and diligence,” as required by the fourth subdivision of §7083, supra, said paragraphs were therefore insufficient, and that the court erred in overruling appellant’s demurrer thereto; that the act of Eebruary 17, 1899 (Acts 1899, p. 58, §359a Burns 1901), did not change or modify
It is contended by appellant that no specific act of negligence on the part of appellant, or any person for whose conduct it is answerable under either, the common law, or §7083, supra,, is alleged in either paragraph of the complaint, It appears from the allegations in each paragraph of complaint that appellee was injured while in the service of appellant as a freight conductor, by the negligence of
Appellant insists that the statute does not create a liability in favor of a person in charge of a train for the negligence of a person in charge of the locomotive engine drawing such train. Said subdivision creates or gives a right of action in favor of any employe of a railroad company for a personal injury suffered by him while in its service, such employe being in the exercise of due care and diligence — that is, free from contributory negligence— when such injury was caused by the negligence of any person in the service of such railroad company who has charge of any locomotive engine or train upon said railway. If appellee’s injury was caused by the negligence of the person in charge of the locomotive engine, as alleged
It is claimed by counsel for appellant that he made a motion to require appellee to make the second paragraph of complaint more definite and specific in regard to the alleged negligence of the engineer in charge of the locomotive engine. Said motion was made before the taking effect of the act of 1903 (Acts 1903, p. 338, §3), and is not, therefore, in the record, unless made a part thereof by a bill of exceptions or order of court. Crystal Ice Co. v. Morris (1903), 160 Ind. 651. Said motion and the ruling thereon were not made a part of the record by a bill of exceptions or order of court, and no question is therefore presented by the second error assigned.
The court instructed the jury upon the subject of contributory negligence as follows: “Contributory negligence is a matter of defense, and such defense may be proved under the answer of general denial. This being the law of this State, it was not necessary for the plaintff Thomas Collins to offer any evidence whatever in chief bearing upon the question of his negligence; he only being required to introduce evidence upon that - proposition after some proof has been introduced by the defendant, after which it was his right to offer evidence upon that proposition.” An instruction in the samé language as the one above set out, except that it did not say in express terms that the evidence which was to raise the question of appellee’s contributory negligence must be introduced by the defendant, but left that to inference, and for that reason was less
Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.