46 Ind. App. 436 | Ind. Ct. App. | 1910
Appellee sued appellant to recover-damages for personal injuries sustained by him while in the-employ of appellant.
The complaint is in two paragraphs. The first alleges,, in substance, that appellant was engaged in constructing an electric interurban railway; that in constructing said, railway large wooden poles, known as trolley-poles, to which arms were fastened that supported the trolley:wire, were-placed in an upright position parallel with said railroad track; that on November 18, 1907, said company was engaged in constructing said line; that on said day plaintiff' was employed by defendant as a brakeman'on defendant’s work-train; that defendant erected all of said trolley-poles along said railroad track, graded the roadbed, laid the rails, and ballasted said traction line; that defendant carelessly and negligently placed said poles four and one-half feet from said track, thereby rendering it dangerous to plaintiff' in giving signals to the engineer, which facts were well known to defendant and of which plaintiff had no knowledge; that on November 18, 1907, plaintiff, while working for defendant company as brakeman on its work-train, and while in the proper discharge of his duties as brakeman,. was ordered by defendant’s foreman to give a certain signal to the engineer in charge of and operating the-locomotive engine drawing said work-train; that it was the-duty of plaintiff to obey and conform to the orders of said foreman; that in order properly to signal said engineer it was necessary for plaintiff to stand on and near the edge of' said work-car, and endeavor to get the attention of said en
The second paragraph alleges, substantially, the same facts as the first, except that it does not negative assumption of risk, and alleges that the pole which plaintiff’s hand came in contact with was crooked; that owing to the carelessness and negligence of defendant in using said pole with the crook, causing that part of the pole to be nearer to the hand and arm of plaintiff in giving signals, he received the injuries complained of.
A separate demurrer for want of facts was overruled to each paragraph, and an answer was filed in general denial. The cause was submitted to a jury and a verdict returned in favor of appellee. With the general verdict the jury returned answers to interrogatories. Over appellant’s motion for a new trial judgment was rendered upon the verdict
The assignment of errors questions the sufficiency of each paragraph of the complaint, the correctness of the ruling1 on appellant’s motion for judgment on the answers to interrogatories, and the overruling of appellant’s motion for a new trial.
The verdict is general, and it does not affirmatively appear that the judgment rests upon the first paragraph. Judgment reversed, with instructions to sustain the demurrer to the second paragraph, and for further proceedings consistent with this opinion.