Day v. Cleveland, C., C. & St. L.R. Co.

• Decision Date: 13 March 1894
• Citation: 137 Ind. 206,36 N.E. 854
• Court: Indiana Supreme Court
• Parties: DAY v. CLEVELAND, C., C. & ST. L. R. CO.

137 Ind. 206

36 N.E. 854

DAY

v.CLEVELAND, C., C. & ST. L. R. CO.

Supreme Court of Indiana.

March 13, 1894.

Appeal from superior court, Marion county.

Action for personal injuries by Worthington W. Day against Cleveland, Cincinnati, Chicago & St. Louis Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

S. E. Urmston and Henry Warrum, for appellant. John T. Dye and Elliott & Elliott, for appellee.

McCABE, J.

This action was instituted by the appellant against the appellee to recover $6,000 damages which he alleges he sustained in and by an alleged personal injury inflicted on him through the negligence of the appellee, and without the fault of appellant. There was a jury trial at the special term. Verdict for appellee, whereon judgment followed, over a motion for a new trial. On appeal, the general term affirmed the judgment of the special term. It is assigned for error in this court that the general term erred in affirming the judgment of the special term. The error complained of in the general term and in this court is that the special term erred in directing the jury, after they had heard all the evidence, to find for the appellee. The undisputed evidence shows that appellee has and maintains shops at Brightwood, in which it repairs and paints its cars; that this work is done by carpenters and painters; that the appellant was one of the carpenters in appellee's employ, and that the cars were repaired and painted while standing on repair tracks in said shops; that, in painting, it often became necessary to move the cars, the better to get at certain parts thereof by the painters; that, when such removals were made, it was done by the painters and carpenters pushing them on the repair tracks. It was usual and customary, when the painters wanted a car so moved, to halloo out, “Push,” and the carpenters generally went to their assistance, and helped push the car on the track. The appellant had been in such employ for about a year and a half. On the day of the appellant's injury, two cars were standing on the repair track, and what was called a “running board” rested, with each end thereof, on the top of one of said cars. This board was used for carpenters and tinners to pass over on, from the top of one car to the other. All of the said employés in the shops were under the control of the appellee's foreman. The painters, on said day, called out for help to push one of these cars a little, to enable them to prosecute their painting. Appellant did not respond at the first call, and on a subsequent call the foreman motioned his head at appellant, which he construed to mean an order for him to help push the car,-one of the two mentioned. Quite a number of the employés of the appellee responded, and helped push the car. Neither appellee nor the foreman was aware that the board had not been removed from the tops of said cars; it being a thick, heavy piece of lumber, 20 inches or 2 feet wide, and an inch thick, and 8 or 9 feet long. The appellant was ignorant that the running board had not been removed or secured. The appellant could easily have seen it, if he had looked, and, in his testimony, gives as the only reason for not looking that he supposed it was not his duty to look, but that it was the duty of somebody else to look out for his safety. He took a position at the drawbar immediately under the running board, and, in common with the other employés, began pushing the car; and, as soon as it was moved enough to pull one end of the board off of one of the cars, it fell on the appellant, and inflicted the injury complained of. None of the other employés was hurt, appellant being the only one struck by the falling board.

In a case where the servant is one of mature age and experience, as in this case, the law never imposes the duty on the master of becoming eyes and ears for his servant, where there is nothing to prevent the servant from using his own eyes and ears to avoid danger. In this case there was nothing to prevent appellant, as such servant, from seeing the danger to which he was exposing himself, and there could be no possible question in the mind of any rational being, who took the precaution to look, that it...