Lake Shore & Michigan Southern Railway Company v. Johnson

• Decision Date: 24 June 1909
• Docket Number: 21,291
• Citation: 88 N.E. 849,172 Ind. 548
• Parties: Lake Shore and Michigan Southern Railway Company v. Johnson
• Court: Indiana Supreme Court

88 N.E. 849

172 Ind. 548

Lake Shore and Michigan Southern Railway Company v. Johnson

No. 21,291

Supreme Court of Indiana

June 24, 1909

From St. Joseph Circuit Court; Walter A. Funk, Judge.

Action by Charles A. Johnson against the Lake Shore and Michigan Southern Railway Company. From a judgment on a verdict for plaintiff for $ 15,000, defendant appeals. Transferred from Appellate Court under § 1399 Burns 1908, Acts 1901, p 565, § 15 (see 42 Ind.App. 687).

Reversed.

Miller Drake & Hubbell and Elias D. Salsbury, for appellant.

Brick & Bates, M. R. Sutherland and R. N. Smith, for appellee.

OPINION

Monks, J.

Appellee brought this action against appellant to recover damages for personal injuries sustained by him while in the employ of appellant. Appellant's demurrer for want of facts to the second amended complaint was overruled. The cause was tried by jury, and a verdict returned in favor of appellee. Over a motion for a new trial judgment was rendered on the general verdict, in favor of appellee.

The errors assigned call in question the action of the court in overruling the demurrer to the second amended complaint, and the motion for a new trial. Appellant insists that "the injury to appellee was the result of an assumed risk for which appellant was not liable. It avers that appellant made and maintained a path along the side of the track for the use of employes, and shows that appellee and other employes had used the path for several months; that the path was apparently safe and sound, solid and firm, as could have been seen by a reasonably careful and prudent person; that where a latent defect is such that ordinary care in inspecting would not disclose it, the defendant is not required to take the way or appliances to pieces to discover the defect; that the facts averred show that a reasonably careful inspection of the path from the surface would not have disclosed any defect; that the path had been in use for several months by appellee and others, and was apparently safe and therefore the complaint does not charge actionable negligence against appellant."

The allegations of the complaint show that appellant made a fill and constructed the path thereon along the side of the track for the use of its employes, that appellee and other employes used the path for several months, and that it was apparently safe, sound, solid and firm so far as could be seen from the surface by a reasonably careful and prudent person, but this does not show, as claimed by appellant, that the alleged defect in the fill which supported the path was such that ordinary care on the part of the appellee would not disclose it, nor that appellee had no knowledge thereof, for it is expressly alleged in the complaint that appellant made said fill of loose dirt, and knew for many months prior to appellee's injury that the same was liable to give way at any time, and that "notwithstanding such knowledge, defendant carelessly, negligently and recklessly failed to make said fill under said path sound, and to make and keep said path safe, and allowed the dirt and filling thereunder to crumble and fail in its support of said path, so as to permit said path to give way under plaintiff's weight." It is also alleged that appellant knew of said defect long before appellee's injury, and that appellee had no knowledge thereof. Said complaint, while it contains needless repetitions, is not open to the objections urged against it.

The causes assigned for a new trial call in question the action of the court in giving to the jury instructions seven and eight.

In each of said instructions the court informed the jury what facts appellee should...