45 Ind. App. 80 | Ind. Ct. App. | 1909
Lead Opinion
It is alleged in the complaint that the appellant negligently permitted its railway track to have in it a low joint, and a defective, old and rotten cross-tie, because of which appellee, who was aboard a hand-car passing over said track, was thrown and injured. Tie is averred to have been in appellant’s employ as a bridge carpenter. The answer was a general denial. There was a trial by jury, verdict and judgment for $1,200.
The only error alleged is based upon the action of the court in overruling appellant’s motion for judgment on the answers to interrogatories, notwithstanding the general verdict. In support of this assignment it is argued that the appellant is shown not to have been guilty of negligence; that the appellee assumed the risk of the defective track, and that he was injured by reason of a condition which he was engaged in repairing.
The well settled rule that, where a servant is employed to put a thing in a suitable and safe condition for use, the master is not required to have the thing in safe condition and good repair for the purpose of such employment, does not apply, for the reason that there is no finding that appellee was employed to put the appellant’s railroad track in a safe condition.
Judgment affirmed.
Rehearing
On Petition for Rehearing.
Appellant urges its petition for rehearing upon the ground that the answers to interrogatories do show that appellee was injured by reason of defects in the track in which he was engaged in repairing. The findings are that appellant’s track between Jasper and Huntingburg was being “practically rebuilt,” including the elevation of bridges to conform to new grade lines, and that appellee was assisting to raise such bridges to such lines.
The averment of the complaint is that the appellant had negligently suffered and permitted a part of its track, known as the Jasper Branch, to get out of repair, and to have therein a great number of low joints, defective, old and rotten cross-ties, so much so that when trains and cars would pass over said defective track the same was not sufficient to conduct said trains and cars.
The petition for rehearing is overruled.