158 Ind. 634 | Ind. | 1902
Action by appellant against appellee to recover for personal injuries. Demurrer to the complaint sustained. Judgment on demurrer, from which this appeal is prosecuted. The following are the facts alleged in the complaint: Appellee is a street railway corporation engaged in running and operating electric cars in and over the streets of the city of Indianapolis. On and prior to December 21, 1900, appellant was in the employ of said
Conceding that appellee under the alleged facts was guilty of negligence in failing to keep-the turntable in proper repair, nevertheless the complaint, under its averments, clearly establishes that appellant in exerting or straining himself in turning the table was also guilty of negligence which contributed as a proximate cause to the injuries which he sustained; hence the case is ruled by the maxim of damnum absque injuria, and he cannot recover in this action. Appellant was under no obligations to appellee to over exert or strain himself in his effort to turn the table, and certainly, under the circumstances, appellee company could not anticipate or foresee that by reason of its failure to repair the table that there was any necessity to protect appellant against his own voluntary action in subjecting himself to the over exertion or strain which resulted in the injury of which he complains. He is shown to have known of the condition of the table, and, from his previous experience in the operation thereof, he certainly was aware of the extra effort or force that was required to operate the table. He is presumed to have known his own strength, and, in fact, he himself was the only one who under the circumstances could measure the extent to which he could safely exert himself in his effort to turn the table. As nothing appears to the contrary, we may assume that he was competent to act and judge for himself. The company neither exacted nor had the right to exact of him any over exertion of his strength in turning the table, hence he assumed whatever risk there was due to such over exertion or strain to which he voluntarily subjected himself. If the complaint can be said to show actionable negligence on the part of appellee, it also, under the facts, establishes a defense in its favor, and therefore, under a
Judgment affirmed.