Kentucky & I. Bridge Co. v. Eastman

• Decision Date: 27 September 1893
• Citation: 7 Ind.App. 514,34 N.E. 835
• Court: Indiana Appellate Court
• Parties: KENTUCKY & I. BRIDGE CO. v. EASTMAN.

7 Ind.App. 514

34 N.E. 835

KENTUCKY & I. BRIDGE CO.

v.EASTMAN.

Appellate Court of Indiana.

Sept. 27, 1893.

Appeal from circuit court, Floyd county; G. B. Cardwell, Judge.

Action by William S. Eastman against the Kentucky & Indiana Bridge Company. Judgment for plaintiff. Defendant appeals. Affirmed.

A. Dowling, for appellant. C. L. & H. E. Jewett, for appellee.

GAVIN, C. J.

The appellee was a brakeman employed on appellant's road, running over the bridge and trestle between New Albany and Louisville. He recovered judgment for damages resulting from an injury received by reason of the negligence of appellant in failing to supply a safe car, the defect being the insufficiency of a gate placed on the platform at the end of the car, against which appellee fell. By reason of its opening, he was thrown from the train. Two causes for new trial are asserted here,-the insufficiency of the evidence, and error of law in giving the second instruction asked by appellee. The instruction complained of reads as follows: “If you find from the evidence that the defendant did not provide suitable cars, appliances, and implements for the safe performance of the plaintiff's duties as brakeman, and you are further satisfied that if the defendant had exercised reasonable care and skill in providing such cars, appliances, and implements, then the defendant is liable for any injury sustained by the plaintiff in the performance of his duties in consequence of such failure, if the plaintiff was himself without fault contributing to such injury.” The rule is thoroughly established that the master must use reasonable care to provide his employes with a safe working place and appliances. Matchett v. Railway Co., 132 Ind. 334, 31 N. E. Rep. 792; Rogers v. Leyden, 127 Ind. 50, 26 N. E. Rep. 210; Railway Co. v. Roesch, 126 Ind. 445, 26 N. E. Rep. 171; Pennsylvania Co. v. Burgett, (Ind. App.) 33 N. E. Rep. 914. It has also been repeatedly decided by our supreme court that the employe cannot recover from the master for injuries suffered by reason of defects in the machinery or appliances used by him, where the danger is known to the employe, although the employer may have been negligent, the employe being deemed to have assumed the danger as one of the risks of his service, if he voluntarily remains in the employer's service after he has acquired a knowledge of the danger. Railway Co. v. Stupak, 108 Ind. 1, 8 N. E. Rep. 630; Railway Co. v. Dailey, 110 Ind. 75, 10 N. E. Rep. 631; Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. Rep. 770; Railway Co. v. Corps, 124 Ind. 427, 24 N. E. Rep. 1046; Rogers v. Leyden, 127 Ind. 50, 26 N. E. Rep. 210; Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. Rep. 741; Becker v. Baumgartner, (Ind. App.) 32 N. E. Rep. 786; Beach, Contrib. Neg. § 382. If, however, the employe be induced to continue in service by the employer's promise, express or implied, to remedy the defect, then an exception to this rule arises. Becker v. Baumgartner, supra; Railway Co. v. Watson, 114 Ind. 20, 14 N. E. Rep. 721, and 15 N. E. Rep. 824; Coal Co. v. Hoodlett, 129 Ind. 327, 27 N. E. Rep. 741. In the last case referred to, it is also held that the risk is not thus assumed by the employe where, by the direction of his employer, he undertakes some work outside of the line of, or away from, the place of his regular employment. These cases also establish the proposition that it is incumbent upon the employe, in an action for...