Chicago & E.I. Ry. Co. v. Schraeder

• Decision Date: 31 October 1928
• Docket Number: No. 13074.,13074.
• Citation: 89 Ind.App. 100,163 N.E. 534
• Court: Indiana Appellate Court
• Parties: CHICAGO & E. I. RY. CO. v. SCHRAEDER.

89 Ind.App. 100

163 N.E. 534

CHICAGO & E. I. RY. CO.

v.SCHRAEDER.

No. 13074.

Appellate Court of Indiana, in Banc.

Oct. 31, 1928.

Appeal from Posey Circuit Court; H. F. Clements, Judge.

Action by William Schraeder against the Chicago & Eastern Illinois Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James H. Blackburn, of Mt. Vernon, Hatfield, Welborn & Roberts, of Evansville, and H. T. Dick, of Chicago, Ill., for appellant.

Emra H. Ireland and Winfield K. Denton, both of Evansville, for appellee.

McMAHAN, J.

This is an action by appellee against appellant to recover damages for personal injuries alleged to have been caused by reason of the negligence of appellant. A trial by jury resulted in a verdict and judgment for appellee for $200. The errors presented relate to the overruling of appellant's motion for a new trial, the particular specifications relied on being the giving and refusing to give certain instructions, and that the verdict is contrary to law.

[1] The first contention is that the court erred in giving certain instructions, for the reason that each of them involves the Federal Employers' Liability Act, while the complaint presents an action at common law. There is no claim that these instructions did not correctly instruct the jury, if the Federal Employers' Liability Act is applicable. Nor is there any claim that they were not proper under the evidence. This question has been so fully discussed by both the Supreme Court and by this court that we do not deem it necessary to enter into a discussion of the law upon the subject. See Vandalia R. Co. v. Stringer, 182 Ind. 676, 106 N. E. 865, 107 N. E. 673;Grand Trunk, etc., R. Co. v. Thrift Trust Co., 68 Ind. App. 198, 115 N. E. 685, 116 N. E. 756. On the authority of these cases, we hold there was no error in giving the instructions of which complaint is made. See, also, Missouri, etc., R. Co. v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134.

[2][3] Instruction No. 3 tendered by appellant and refused was to the effect that if appellee was guilty of contributory negligence he could not recover. The evidence was sufficient to justify a verdict for appellee under the Federal Employers' Liability Act. By section 3 of that act contributory negligence is to be considered only in mitigation of damages (section 8659, U. S. Comp. Stat. 1916; 35 Stat. at L. 65; 45 USCA § 53), unless such negligence is shown to be the sole cause of the injury (Pittsburgh, etc., R. Co. v. Edwards, 190 Ind. 57, 129 N. E. 310). Appellee at the time of his injury was leaving his place of employment. He was yet on his employer's premises. In leaving his place of employment at the close of his day's work he was discharging a duty of his employment. Erie R. Co. v. Winfield, ...