39 Ind. App. 682 | Ind. Ct. App. | 1906
Appellee recovered a judgment below against appellant for damages for personal injuries alleged to have been caused by its negligence. The complaint is in two paragraphs, to each of which a demurrer was overruled. Answer in denial. Trial by jury, and with their general verdict they found specially as to specific "facts by their answers to interrogatories. Appellant’s motions for a new trial and for judgment in its favor upon the interrogatories were overruled.
Overruling the demurrer to the complaint, the motion for a new trial, and the motion for judgment on the answers to the interrogatories are all assigned as errors, but they are all expressly waived in argument, excepting the overruling of the motion for a new trial. •
That the nature of the action may clearly appear, it is important to state the material facts relied upon as disclosed by the complaint. The first paragraph avers that appellant owned and operated a steam railroad, and .that it had tracks along and upon the public streets and alleys in the city of Indianapolis, and owned and operated a certain building for a freight-depot, the west end thereof fronting on South
The second paragraph of the complaint is substantially identical with the first, with the averment of the following additional facts: That on the morning of March 5, 1903, before he went to work, he explained to the men who had charge, direction and control of the switching of cars in said depot and yards adjoining the same, the situation of the west end of the depot where they had to work, and that they had to cross and recross said tracks, and that it was a dangerous place, and requested said men to be certain to give appellee and his men a signal of warning before they backed any cars into the depot from the tracks, so that they would not be injured thereby; that on the morning before appellee and his men began to work on the wall he fully explained to the conductor of the switching crew the situation at the west end of the depot; that he and his men would necessarily have to be on the tracks in performing the work, and that it was a dangerous and close place, and requested the conductor to give them a signal of warning before backing any cars or engines into the depot on said tracks, a sufficient length of time so that they could avoid the danger and protect themselves from being injured or hurt thereby; that said conductor and the men who had charge of said crew, after appellee’s explana
Before taking up for consideration the questions presented by the motion for a new trial, we will state generally what we gather from the evidence of important undisputed facts. Millikin had a contract with appellant by which he was to repair a brick wall at the west end of appellant’s freight-depot in the city of Indianapolis, which had been broken down by a car which ran into it. He employed appellee to oversee the work. There were four railroad tracks inside the depot, extending from near the west end the full length thereof and out at the east end. At the west end of these tracks were bumping-posts to stop cars. Appellee had been at work for two days before he was injured, the accident occurring at 7:30 o’clock on the morning of the third day. The tracks were full of cars all the time appellee was engaged at the work. There was an opening twenty or twenty-five feet wide in the wall extending across the two tracks, which opening had been somewhat enlarged
Appellee could have gone from the place where he wanted to use the jack out on the west side of the wall, thence north a distance of about fifty feet to the steps, up the steps onto the platform, where the jack lay, being a total distance of sixty-five feet, and gotten the jack and carried it back the same way. There was no obstruction to his going to the jack by that way, and there was nothing to prevent him from doing so, and thus carrying it where he wanted to use it. He went after the jack and attempted to use it without the invitation, knowledge, or consent of appellant. There was no agreement between appellant or either Millikin or appellee as to who should furnish the tools and appliances for doing the work at which appellee was engaged. He could have gone across Delaware street and obtained a jack by the payment of fifty cents for the use of it, but he undertook to use appellant’s jack because it was more convenient and was . furnished gratuitously. The evidence further shows that appellee’s injury resulted in the loss of his leg, as described in the complaint.
We will consider the questions presented by the motion for a new trial in the order of their presentation and discussion by appellant’s counsel.
Upon these facts, which seem to be undisputed, ■ it is insisted that it was error of the trial court to refuse to give an instruction tendered by appellant, directing a verdict in
Before considering the action of the court in refusing to direct a verdict, it is important to keep in mind that there is evidence in the record from which the jury were authorized to reach the conclusion that the employes of appellant had assured appellee, upon being advised that he and his men were in a place of danger, that before pushing any cars against those standing on the tracks near where they were working, they would give them due warning, so they might protect themselves from injury.
The following authorities support the proposition that the proximate cause of the injury was the sudden backing
Judgment affirmed.