43 Ind. App. 664 | Ind. Ct. App. | 1909
Appellee recovered judgment for $250, damages for personal injuries sustained by him while employed by the appellant as a section man. The injury was received by a crowbar’s falling and breaking one of the bones of his foot. He had started to draw one of the spikes that held the rails of the track in place. The bar had claws or flanges which went partly around and against the head of the spike, and, in pulling down on the handle part of the bar in an effort to draw the spike, the claws slipped off the spike and the bar fell.
The complaint alleges, in substance, that in his work for appellant, it became necessary to use a crowbar, and that he used one furnished by the defendant for the work; that the defendant was negligent in this: that said crowbar was not properly constructed for the work for which it was required to be used, in that ‘‘it was made blunt and stubby, its claws were too short, not being of sufficient length and size when put on a spike to grab and hold the same with sufficient tightness to permit it to draw same,” and when great effort was used — and such was required in doing such work — the crowbar, on account of its defective construction, would suddenly slip from its grasp on such spike and fly out of the hands of the party using the same and fall to the ground, and it so did on the occasion of plaintiff’s using same, falling on his foot and inflicting said injury; that said crowbar was old and worn, which added and aided in its defective condition, causing it to slip the easier from said spike when he attempted to pull the same; that he had never used said crowbar before; that he had no knowledge of its defective con
Appellant’s motion for a new trial was overruled, and this action of the court is assigned as error.
For a reversal, appellant relies upon the evidence. The evidence shows that the bar had been used for a year on the section where appellee was working, and that it was used continuously thereafter until taken away by the company to be kept until the trial. It was suitable for drawing spikes. All the section men testified that it was in the same condition when produced at the trial that it was on the day the appellee was hurt and when taken away by the company. Appellee upon rebuttal testified that it had been changed while in the possession of the company before trial. His evidence was contradicted by all of his fellow workmen.
The plaintiff testified that he was twenty-nine years of age and a common laborer; that he began work for the Vandalia Railroad Company in December, 1906; that he had worked for five and one half days -when he was injured; that he had previously worked for the Evansville & Terre Haute Railroad Company about six months; that he was working on the section at the time he was hurt; that his work consisted of pulling spikes, driving spikes, shoveling and using the pick; that about a year previously he had worked for the defendant for about two weeks; that he did the same work then that he was doing at the time he was injured ; that he was injured on December 19, 1906, at a point about 300 yards south of the union depot in Vincennes, near the crossing of tracks of the Vandalia and the Evansville & Terre Haute railroads; that on the morning the accident happened the section gang went out to the end of the section on a hand-car, and when they were about half way back they stopped and picked up the crowbar, by which appellee was afterwards hurt, from where it was lying in the grass at the side of the track, put it on the car, and brought it to town
which he attributes his injury. This knowledge, so readily within his observation, at least, will hold him to have assumed the risk of the use of the tool. Kentucky, etc., Bridge Co. v. Eastman (1893), 7 Ind. App. 514; Jenney Electric, etc., Co. v. Murphy (1888), 115 Ind. 566; Stuart v. New Albany Mfg. Co. (1896), 15 Ind. App. 184; Evansville, etc.,
See the cases before cited.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial, and for further proceedings in accordance with this opinion.