25 Ind. App. 227 | Ind. Ct. App. | 1900
—Appellee brought this action against appellant to recover damages for personal injuries alleged to have been received by him while in appellant’s employ. The complaint is in one paragraph, a demurrer to which for want of facts was overruled, and the cause put at issue by general denial. A trial by jury resulted in a verdict in favor of appellee for $2,000. Appellant’s motion for a new-trial was overruled and judgment rendered for the amount of the verdict.
The only specification of the assignment of errors discussed is the action of the court in overruling appellant’s motion for a new trial.
It is alleged, in substance, in the complaint, that on the 3rd day of January, 1896’, defendant was the owner and operator of a line of railroad leading in and through the city of Terre Haute; that plaintiff was in its employ as a brakeman, whose duty it was, among other things, to couple and uncouple cars and give signals for the starting of the defendant’s trains. That on said day plaintiff was one of a crew of men in charge of a' certain train of defendant, consisting of a number of freight cars and locomotive, which train was about to depart from defendant’s yards about Fourteenth street, in the city of Terre Haute, for points west; that just before said train departed, it was standing across said Fourteenth street; at said point, said train was cut in two portions in order to permit travelers on and along said Fourteenth street to cross defendant’s road and right of way; that immediately before said train’s departure, this plaintiff, in the discharge of his duties as brakeman, coupled the said portions of said train at said point; that immediately thereafter, $,t 5 o’clock a. m. on said 3rd day of January, 1896, while it was very dark, said train was started toward the west, and that then and there plaintiff stepped to the rear right-hand corner of one of the cars in said train, and was in the act of getting on said car and on top thereof; that on the right side of and near the rear
At the time of the accident appellee was forty years old, had been engaged in the business of railroading fourteen years, and employed as brakeman by the defendant about one year. The manner of the accident was proved substantially as alleged.
Appellee was furnished a book containing rules for brakemen. One of the rules, with which appellee was acquainted, contained the following: “They must examine and know for themselves that the brake-shafts and attachments, lad
Counsel for appellant discuss the action of the court in giving to the jury instruction numbered two requested by appellee, modified by the court, and given as modified. This is made the seventh reason for a new trial. The instruction is as follows: “The court instructs you that defendant was in duty bound to exercise reasonable care in furnishing plaintiff reasonably safe appliances and machinery with which plaintiff might perform the work within the scope of his employment as that of brakeman; and plaintiff, under the law, had a right to presume that defendant had performed its duty in this respect; and if you should find that the defendant failed and neglected to perform such duty, and you should further find that by reason of such failure plaintiff was injured, and without any fault on his part, if you should so find from a preponderance of the evidence, then you should find for the plaintiff.”
The objection urged to this instruction is that it omits the essential fact that plaintiff must be ignorant of the defect. It is claimed that freedom from fault and ignorance of the defect are distinct elements in cases of this kind. In the recent case of Chicago, etc., R. Co. v. Glover, 154 Ind. 584, this question is directly decided. In passing upon the correctness of an instruction given to the jury in the case last named, the court, by Monks, J., said: “It was alleged in the complaint that appellant had full knowledge of the defects mentioned in said instruction, and that the decedent had no knowledge thereof. Under the allegations of the complaint appellee was required to prove not only that the decedent had no knowledge of said defects, but that he could not have known them by the exercise of ordinary care. Consolidated Stone Co. v. Summit, 152 Ind. 297, and cases cited; Pennsylvania Co. v. Ebaugh, 152 Ind. 531.
The portion italicized of the following part of this instruction is also objected to: “The court instructs you that defendant was in duty bound to exercise reasonable care in furnishing plaintiff reasonably safe appliances and machinery with which plaintiff might perform the work within the scope of his employment as that of brakeman; and plaintiff under the law had the right to presume that defendant had performed its duty in this respect,’’ etc. It is claimed that the court thus told the jury, in effect, that the plaintiff had the right to act upon the assumption that the defendant had done its duty, and that he was therefore excused from making any inspection for himself. Under' the rule herein-before set out, it was the duty of appellee himself to examine the hand-holds. An employer may adopt reasonable rules for the conduct of his business. When brought to the knowledge
In Ft. Wayne, etc., R. Co. v. Gruff, 132 Ind. 13, the Supreme Court seem to hold that the rule in question is a reasonable one. While ordinarily an employe has the right to assume that his employer has done his duty, as stated in the instruction, in view of the rule referred to, the instruction was erroneous in excusing plaintiff from its observance.
The giving of instruction numbered one, requested by appellee and given as modified by the court, is made the fifth reason for a new trial. The objection made to instruction numbered two, supra, viz., that it did not contain the statement of the want of knowledge of the defect on the part of plaintiff, applies to instruction numbered one. The same authorities are applicable to both. The same objection is made to instruction numbered three given to the jury; that is, that no mention is made that it is necessary for plaintiff to show that he did not know of the defect.
The giving of instruction number seven is made the fourteenth reason for a new trial. It is as follows: “The rule requiring brakemen to examine and know for themselves that the brake-shafts, and attachments, and ladders, and running-boards, steps, hand-holds, and other parts and mechanical appliances which they are to use, are in proper condition, cannot reasonably be applied at all times and under all circumstances; and I instruct you that, unless it is shown that the plaintiff was given sufficient time fully to examine and know for himself that the various parts of the train with which he had to work were in safe and good condition and that he was provided with such tools and instruments necessary for making a proper inspection to
It is claimed, and we think fairly, that the manifest' inference to be drawn from the expression “unless it is shown,” etc., is that sufficient time should be shown by the defendant. Counsel for appellee, conceding for the sake of the argument that by this instruction the burden of proof was wrongfully put upon the defendant, claim that it was harmless, for the reason that the evidence conclusively shows that the plaintiff did not have sufficient time to make the inspection. Counsel for appellant claim that the evidence shows that appellee made no pretense of complying with the rule requiring him to make personal inspection. The evidence is of such a character that the question of the knowledge, actual or constructive, of the appellee of the defective hand-hold and his observance of the rule in question, should have been submitted to the jury upon instructions free from uncertainty as to the burden of proof.
As before stated, it is claimed in this case, as it was claimed in Chicago, etc., R. Co. v. Glover, 154 Ind. 584, that the error, if any, in the instructions discussed was cured by others given correctly stating the law. This argument is met in the case last named and the authorities therein cited. The insufficiency of the evidence to sustain the verdict is discussed earnestly and at length. The con
Judgment reversed, with instruction to sustain appellant’s motion for a new trial.