Evansville & R.R. Co. v. Barnes
Decision Date | 28 March 1894 |
Citation | 36 N.E. 1092,137 Ind. 306 |
Court | Indiana Supreme Court |
Parties | EVANSVILLE & R. R. CO. v. BARNES. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Monroe county; R. W. Miers, Judge.
Action by Stewart Barnes against the Evansville & Richmond Railroad Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.
See Railroad Co. v. Henderson (Ind. Sup.) 33 N. E. 1021.
M. F. Dunn, for appellant. C. C. Matson, Jos. Giles, John R. East, and W. C. East, for appellee.
The matter in controversy has been substantially passed upon by this court in the case of this appellant v. Henderson (decided on April 4, 1893) 33 N. E. 1021. The Henderson suit grew out of the same wreck, and the facts upon which the court reversed the judgment of the court below are almost identical with those shown in this case; that is, we have the same conductor, the same engineer, the same cross-ties and derailment. Instead of an inexperienced minor, we have an experienced railroad man and an adult. In lieu of a mere employe, ignorant of the road and but a short time in its employ, as in the former case, we have, in the person of the plaintiff, the superintendent of bridges and an assistant superintendent of construction, who had been with the road during the entire progress of its construction, frequently over it, and thoroughly familiar with its condition; one who inspected the track, including the portion complained of, immediately before the accident, and who made no protest, but permitted the train to be run at a rapid rate of speed when it was within his power, owing to his position, to have prevented it. We have before us a plaintiff superior in authority to all the construction trainmen, who, from his experience, by a mere casual observation, had he looked, could have seen that the ties were not properly loaded, and who made no objection to the manner of loading, and assumed the risk. The appellee's own testimony condemns his right to a recovery. As a witness he says, in substance: Felix Polk, who was engaged with the appellant that day, says: “We inspected the bridges and the track that morning.” From the testimony of the appellee as to the condition of the track observed by him and Felix Polk, immediately before the accident, it is evident he knew it was a new track, half tied and not ballasted. In another part of his statement, he says: The witness also says he did not look to see whether the ties were braced or not, and that he could have told at a glance. Railroad Co. v. Henderson (Ind. Sup.) 33 N. E. 1021. Where the danger is equally open to the observation of both the master and the servant, they are upon an equality, and the master is not liable as a general rule for the resulting injuries. Railroad Co. v. Henderson (Ind. Sup.) 33 N. E. 1021, on page 1022; Griffin v. Railway Co., 124 Ind. 326, on page 328, 24 N. E. 888. The accident to some extent must be attributed to the speed with which the train was run. This is the appellee's contention also, but the necessity of the speed at which the train was propelled at the time of the injury is not apparent from the evidence adduced on the trial. On the contrary, it is shown that the engineer had orders to run slowly, which he violated. In the case of Railroad Co. v. Henderson (Ind. Sup.) 33 N. E., on page 1023, the court say: In Railroad Co. v. Arnold, 31 Ind., on page 183, it is said: ...
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