Appeal
from Henry Circuit Court.--Hon. D. A. DeArmond, Judge.
The
instructions in the cause in the trial court were the
following:
Given
for plaintiff:--"1. The court instructs the jury that it
was the duty of the defendant to have kept its ties, roadbed
and track in a reasonably safe condition for the passage of
trains over the same; and to have furnished for use on said
road cars and appliances which were reasonably safe for use
thereon. And if you find from the evidence that at the time
of the accident plaintiff was in the employ of the defendant
as conductor of a freight train, and that defendant's
roadbed and track were not in a reasonably safe condition for
passage of trains over the same at the place of the accident
on account of rotten ties being therein, or on account of
failure to properly ballast said roadbed, or on account of
the inside rail of the curve near said accident being higher
than the outside rail thereof, and that defendant knew, or by
the exercise of ordinary care might have known, of the
condition of said ties, roadbed and track before the
accident; and if you further believe from the evidence that
at the time of the accident defendant had provided for use in
said train a caboose with a defective brake and had placed in
said train a car so heavily loaded that it would not adjust
itself to the track in passing over the same, and that by
reason of the rotten condition of said ties, if they were
rotten, or by the reason of defendant's failure to
ballast said road, if it did so fail, or by reason of the
rail on the inside of said curve being higher than the
outside rail thereof, if said inside rail was higher, or by
reason of the overloaded condition of said car, if it was so
overloaded, or by reason of the defective brake on caboose
if it was so defective, or if by reason of all said things
said train was wrecked, without the fault of plaintiff and he
was thereby injured, you will find for plaintiff.
"2.
If you find for plaintiff, you will, in assessing his
damages, take into consideration his age and condition in
life, the injury sustained by him, if any; the physical pain
and mental anguish suffered and endured by him on account of
said injury, if any; his loss of time, if any; such damages
if any, as you believe from the evidence he will sustain in
the future as the direct effect of such injury; such sums as
he has paid out for medical attention on account of said
injury, if any; together with all the facts and circumstances
in evidence in the cause; and assess the damages at such sum
as from the evidence you may deem proper, not exceeding $
15,000, the amount sued for."
Given
for defendant:--"2. There is no evidence before the jury
that the engineer in charge of the train at the time of the
accident was incompetent, and that his incompetency was the
proximate cause of the injury complained of by plaintiff, and
that issue is withdrawn from your consideration."
"9.
The mere fact that there may have been decayed ties in the
roadbed at the point of the accident does not authorize you
to find for the plaintiff. You must further believe that the
decayed condition of the ties, if they were decayed, was the
cause of the wreck, and that defendant knew, or by the
exercise of ordinary care, might have known of the decayed
condition of the ties, and that the wreck was caused by the
fact that the ties were decayed; and, unless you so believe
you will find for the defendant on this issue. You are not
authorized to find for the plaintiff from the fact alone that
the ties were rotten at the point where the wreck occurred.
"10.
Although you may believe from the evidence that the plaintiff
was a conductor on the defendant's road, and, while in
the employ of the defendant, his train was wrecked and
injured thereby, and that the wreck was caused by the roadbed
of defendant being in a defective condition, or by reason of
the cross-ties thereon being decayed and rotten, or by reason
of the brakes being defective, or by reason of one of the
cars being overloaded, or by reason of the inside rail being
higher than the outside one, all of these facts, if true, do
not authorize you to find a verdict for the plaintiff. Before
he can recover, you must believe that defendant knew, or by
the exercise of ordinary diligence could have known that the
track was in a defective condition, or that the cross-ties
thereon were rotten, or that the brakes were defective, or
that the cars were overloaded, or that the inside rail was
higher than the outside one, and unless you are so satisfied
you will find for defendant.
"11.
If the plaintiff knew that the car was overloaded, if such
was the fact, or if the same was such that any ordinarily
observant person would have known at the time of receiving
the same, and the wreck was caused by the overloaded
condition of the car, then plaintiff cannot recover.
"12.
If the plaintiff knew of the defective condition of the
brakes, if they were defective, or could have known if they
were of such a character, as an ordinarily observant person
would have known, and the condition of the brakes caused the
wreck, plaintiff cannot recover.
"13.
If the plaintiff knew of the defective condition of the
roadbed, if it was defective, or if the defect therein, if
there was any, was such as an ordinarily observant person
would have known before entering the service of the
defendant, then plaintiff cannot recover if such defect was
the proximate cause of the injury.
"14.
If the plaintiff knew that the cross-ties in defendant's
roadbed were rotten, if they were rotten, or if the condition
of the ties were such that an ordinarily observant person
would have known before the accident, and he continued in the
employment of said company after becoming possessed of such
knowledge, then he cannot recover if the condition of the
ties was the proximate cause of the injury.
"15.
If the plaintiff knew that the inside rail of defendant's
road was higher than the outside one, if such was the fact,
or if the same was of that character that an ordinarily
observant person would have known, and he continued in the
employment of defendant or entered thereon, with knowledge of
the fact, he cannot recover, if the height of the rail was
the proximate cause of the injury.
"16.
The law did not require defendant to provide an absolutely
safe track and machinery for the use of its employes, and the
fact that defendant's may not have been in an absolutely
safe condition, does not authorize you to find for plaintiff.
All that the law required of defendant was that its track
should be in a reasonably safe condition, and if at the time
of the wreck you believe that defendant's roadbed, ties
and rails were in a reasonably safe condition, you will find
for the defendant on the issue of defective tracks and ties.
"19.
The court instructs the jury that although you may believe
from the testimony that defendant's track was in a
defective condition, that there were rotten ties in the same,
that the curve in the vicinity of the place of accident had
its inside rail higher than the outside one, that there was a
car in said train with defective brakes, and also one was
overloaded, and that these facts, or any or all of them,
caused the accident, yet you cannot find for plaintiff, if
you further believe from the evidence that plaintiff knew, or
by the exercise of ordinary care could have known of the
existence of said facts.
"20.
The court instructs the jury, that, if you believe from the
testimony that plaintiff was an experienced railroad man,
both as engineer and conductor, at the time of the accident,
and that he permitted the train under his charge to be run at
an unusual and reckless rate of speed, and that said unusual
and reckless rate of speed of the train was the proximate
cause of the accident, and that, but for said rate of speed
the accident would not have happened, notwithstanding defects
(if there were any) in the track or cars or manner of loading
the cars of the defendant, then the plaintiff cannot recover
and your finding will be for defendant.
"21.
The court instructs the jury that the plaintiff, in
performance of his duties as conductor of the train of
defendant, assumed all the usual and ordinary risks incident
to his business, and if injured by any accident arising from
these, the defendant is not liable to him therefor; and, if
you believe from the testimony that plaintiff created an
extraordinary risk for himself by permitting the train to run
at an unusually rapid rate of speed, and was injured on that
account, your finding will be for defendant."
Defendant's
refused instructions: "3. There is no evidence before
the jury that the cause of the accident was a defective brake
on the caboose, and on that issue you will find for
defendant.
"4.
There is no evidence before the jury that any car in the
wrecked train was overloaded, and that the proximate cause of
plaintiff's accident was an overloaded car, and on that
issue you will find for the defendant.
"5.
There is no evidence before the jury that the inside rail, at
the point where the cars left the track, was higher than the
outside one, and that issue is withdrawn from your
consideration.
"7.
There is no evidence before the jury that the track of
defendant's road at the point where the wreck occurred
was defectively constructed or in a defective condition, and
that issue is withdrawn from your consideration.
"8.
If you believe from the evidence that the three rear cars in
the train left the rails on account of the rate of speed at
which the train was being run, then such act was the
proximate cause of the wreck, and...
