Lynch v. Chicago, St. L.&P.R. Co.
| Decision Date | 04 January 1894 |
| Citation | 8 Ind.App. 516,36 N.E. 44 |
| Court | Indiana Appellate Court |
| Parties | LYNCH v. CHICAGO, ST. L. & P. R. CO. |
OPINION TEXT STARTS HERE
Appeal from superior court, Marion county; N. B. Taylor, Judge.
Action by George W. Lynch against the Chicago, St. Louis & Pittsburgh Railroad Company for personal injuries received in defendant's employ. Judgment for defendant. Plaintiff appeals. Affirmed.
J. E. McCullough and L. P. Harlan, for appellant. Samuel O. Pickens, for appellee.
The appellant sued appellee for damages occasioned by injuries suffered by him while rolling car wheels, in the line of his employment, and under the direction and command of appellant. It was alleged in the complaint that the wheels weighed 600 pounds, and were rolled along a plank track consisting of planks laid lengthwise, loosely nailed at the ends, with rotten edges, and with cracks between the planks, which were filled in with dirt and other soft material, and covered over with dust, so that the flanges of the wheels would run into the cracks, and fall. While engaged in rolling a wheel, it rolled into a crack between the planks, spread them apart, and thereby caught appellant's foot, and fell over on it, all without any fault on his part, and solely by reason of appellee's negligence. Knowledge of the defect and danger by the appellee, and want of such knowledge upon the part of the appellant, are expressly alleged. Upon the trial there was a general verdict for appellant, with answers to interrogatories. Upon these answers, judgment was rendered in favor of the appellee, over appellant's exception. The correctness of this action of the court is presented for our consideration.
From the interrogatories, and answers thereto, it appears that appellant was injured, as alleged in the complaint, while engaged in the line of duty, rolling car wheels over a track formed by three rows of boards laid lengthwise, with a crack between the boards, an inch or more wide, filled in with cinders; that for a month before the accident the crack had been in the same condition as at the time of its occurrence; that appellee had been employed as a roustabout 40 or 45 days before he was hurt, but had on one occasion rolled 8 or 10 wheels over this track before that day, and, upon the day of the accident, 4 or 5, before he was hurt. He had been instructed how to roll the wheels, and of the danger connected with rolling them, and how to avoid such danger, before the time of the injury, but not by the foreman. The danger connected with the rolling of wheels, and the way to avoid it, were apparent to a person of ordinary intelligence and judgment. Appellant was 40 years old, and in full possession of his sense of sight. The crack into which the wheel rolled was in such condition that it could be seen that a crack was at that place, by a person walking over the boards at that place, if he gave ordinary attention to the place where he was walking. Appellant could have known of the condition of the boards and of the existence of the crack before that day, if he had exercised ordinary care and diligence in his work about the yards and in his surroundings, and did know such facts prior to such day. He also knew, or by the exercise of ordinary care and attention could have known that, in rolling the wheel over the boards where he was injured, it was liable to run into a crack and fall. He knew, also, of the condition of the track where he was hurt, and of the existence of the crack in question, before the wheel ran into the crack, and that the wheel was liable to run into it. It is undisputed that the answers to interrogatories will not control the general verdict, unless irreconcilable with it. Nor will the answers be aided by intendment. The answers must of themselves establish some fact or facts which are absolutely incompatible with the appellant's right to recover upon any evidence admissible under the pleadings, else the general verdict must stand. Railway Co. v. Trowbridge, 126 Ind. 391, 26 N. E. 64;Town of Poseyville v. Lewis, 126 Ind. 80, 25 N. E. 593; Railroad Co. v. Spilker, (Ind. Sup.) 33 N. E. 280; Railroad Co. v. Weikle, (Ind. App.) 33 N. E. 639. The only question presented by these answers is as to the assumption of the risk of the defective track by appellant. Applying to the facts specially found a strict, and not a liberal, rule of construction, we still think it clearly appears that since appellant knew the condition of the track, and the existence of the crack in question, and that the wheel was liable to run into it, and also knew, or by the exercise of reasonable care might have known, that the wheel was liable to run into a crack, and fall, he is chargeable with knowledge both of the defect and of the danger. The finding that he knew the condition of the track fastens upon him not only knowledge of some but of all the defects existing in the track. The law requires the master to exercise reasonable care to provide his employes with safe working places and appliances. Bridge Co. v. Eastman, (Ind. App.) 34 N. E. 835; Railway Co. v. Holcomb, (Ind. App.) 36 N. E. 39, and cases there cited. It is also settled, as a general rule, in Indiana, that the employe cannot recover from the master for injuries suffered by reason of defects in the place where he works, or the machinery or appliances with which he works, where the danger is known to him at the time of his employment, or where he voluntarily remains in the service after he has acquired such knowledge, or by the exercise of due care should have acquired it. Under such circumstances, he is deemed to have assumed the risk. Ames v. Railway Co., (Ind. Sup.) 35 N. E. 117; Railroad Co. v. Duel, (Ind. Sup.) 33 N. E. 355;Swanson v. City of La Fayette, (Ind. Sup.) 33 N. E. 1033;Bridge Co. v. Eastman, (Ind. App.) 34 N. E. 835;W. C. De Pauw Co. v. Stubblefield, 132 Ind. 182, 31 N. E. 796;Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. 741;Rogers v. Leyden, 127 Ind. 50, 26 N. E. 210;Railway Co. v. Corps, 124 Ind. 427, 24 N. E. 1046;Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. 770;Rietman v. Stolte, 120 Ind. 314, 22 N. E. 304;Railway Co. v. Watson, 114 Ind. 20, 14...
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