170 Ind. 273 | Ind. | 1907
Appellee instituted this action in the lower court against appellant, the Southern Railway Company, Joseph Buggies and the Southern Railway Company of Indiana, to recover damages on account of personal injuries sustained by him while.in the service of appellant railroad company. Appellant unsuccessfully petitioned the trial court to remove the cause to the federal court on the ground of diversity of citizenship. Upon the issues there was a trial by jury, and a general verdict was returned against appellant, awarding appellee damages in the sum of $6,000. Answers also to interrogatories propounded to the jury were returned along with said verdict. The jury found in favor of the appellant’s codefendants. Appellant moved for a new trial, assigning various reasons therefor. This motion
To reverse the judgment against it, appellant prosecutes what may be considered a vacation appeal, and has assigned the following alleged errors upon which it relies for reversal: (1) Overruling its petition to remove the cause to the federal court; (2) overruling the demurrer to the first and second paragraphs of the complaint; (3) overruling the motion for judgment on the answers of the jury to the interrogatories; (4) overruling the motion for new trial.
The complaint is in two paragraphs, bnt each party concedes that the ease was tried solely upon the second, therefore the first paragraph, so far as this appeal is concerned, may be considered as eliminated from the case.
The second paragraph of the complaint, among other things, alleges that “said railway defendants were railway corporations, duly and legally organized and incorporated, the former under the laws of Virginia, and the latter under the laws of Indiana; that these defendants operated a line of steam railway extending from Louisville, Kentucky, to St. Louis, Missouri; that said line, in its course to and from said points, passes through Dubois county, Indiana, and through the town of Golden Gate, Illinois;” that “among the employes working for said railway defendants on April 29, 1904, the date of the alleged injuries to plaintiff herein, were this plaintiff and the codefendant of said railway, Joseph Ruggles; that on the day aforesaid the plaintiff was employed by defendants as a brakeman on a freight-train, and was at the time of the receipt of his injuries engaged in working upon the freight-train run by defendants from East St. Louis, Illinois, over and upon their line of railway to Princeton, Indiana; that Joseph Ruggles was employed by said railway defendants as a locomotive engineer, and as such had charge and control of the locomotive engine drawing the train upon which this plaintiff was laboring at the time he received his injuries;” that “at Mt. Vernon, Illinois, said railway defendants coupled their train to an old, worn and defective ear, for the purpose of hauling said car to Princeton to have same repaired; that the draw-bars, draw-heads, bumpers, rods and timbers supporting said machinery, on account of the long and continued use thereof in said car, had become and were worn, rotten, decayed and defective, so much so that when the engine was backed up to and against said car the force of said collision caused by their coming in contact with each other, on account of the rotten, decayed and defective condition of
The court therefore erred in overruling the demurrer thereto, for which error the judgment is reversed, with instructions to the lower court to sustain said demurrer.