Meador v. the Lake Shore And Michigan Southern Railway Company

• Decision Date: 06 June 1894
• Docket Number: 16,777
• Citation: 37 N.E. 721,138 Ind. 290
• Parties: Meador v. The Lake Shore and Michigan Southern Railway Company
• Court: Indiana Supreme Court

37 N.E. 721

138 Ind. 290

Meador v. The Lake Shore and Michigan Southern Railway Company

No. 16,777

Supreme Court of Indiana

June 6, 1894

From the Elkhart Circuit Court.

Judgment affirmed.

H. C Dodge, for appellant.

F. E Baker and C. W. Miller, for appellee.

OPINION

Dailey, J.

This was an action by the appellant against the appellee for damages for personal injuries, stated in a complaint in one paragraph.

The allegations therein summarized are as follows: The appellant was an employe of the defendant, and a part of his duty was to light and extinguish lamps at a street crossing, the lamps being put on top of a post eight or eight and one-half feet high, requiring a ladder to be used by appellant to perform that duty; that appellee furnished the ladder; that it got out of repair; that Christian Jacobson was the agent of appellee, who was entrusted with the duty of furnishing for appellee all ladders and other appliances, which were made in appellee's carpenter shop at Elkhart station; that appellant notified said Jacobson that said ladder was becoming weakened and out of repair, and was not suitable for the use which appellant was required to make of it; that said Jacobson told the appellant the ladder would be safe until he, Jacobson, could furnish a new one, and he would furnish a new one very soon; that appellant's other duties were performed without the use of the ladder, and were at a different place; that appellant relied upon the statement of Jacobson that said new ladder would be furnished at the place the ladder was to be used; that when he went to use the ladder he found that no new ladder had been furnished according to promise; that the service in which the ladder was used was of a kind which could not be postponed; that he carefully examined the old ladder and could not see any new evidence of its giving away, and in the belief that said Jacobson knew whether it was safe to use, when he told appellant to continue to use it until a new one was furnished, and relying upon said Jacobson's directions and knowledge, he carefully, and without any negligence, used the ladder again, upon which use it gave away and threw him upon the ground and injured him; that he would not have used said ladder but for the directions of said Jacobson and his promise to supply a new one; that the defective condition of said ladder was wholly because of the negligence of the appellee, and not contributed to by the appellant.

The appellee demurred to the complaint and the demurrer was overruled. The case was then put at issue by a general denial.

At the trial the court instructed the jury as follows: "Gentlemen of the jury, the court instructs you to find a verdict for the defendant. J. M. Van Fleet, Judge."

To the giving of this instruction the appellant, at the time, excepted. The jury obeyed the instruction, and returned their verdict for the defendant. Final judgment was rendered upon the verdict. Appellant filed a motion for a new trial, which was overruled and exceptions taken.

The appellant assigns two errors as follows:

1st. The court erred in overruling appellant's motion for a new trial.

2d. The court erred in taking the case from the jury.

The second specification is not a proper assignment of error and presents no question for our consideration. The real question to be considered is: Did the court err in overruling appellant's motion for a new trial?

It appears that the appellant was a man of mature years, and of average mental and physical capacity. It was his duty, under his employment, to light and extinguish lamps placed on posts, the distance from the ground to the burner being from eight to eight and one-half feet. In doing this he used a ladder, furnished for the purpose, about five feet long, containing five steps including the top piece, four steps being nailed between and to the sides, and the last step on top of the uprights or side pieces. By setting the ladder against the post appellant would climb only upon the third step to bring his head even with or above the lamp. The defects alleged to have existed in the ladder, at and before the accident and injury complained of, consisted in the steps not being nailed in tight enough at the sides. On the morning when the injury occurred, if the nails were partially withdrawn from the boards, that was open to observation and could have been readily seen. Such must have been the condition of the ladder at the time, for it "fell apart." If a hammer or hatchet was not convenient, a stone or a brick would have remedied the defect. No contrivance could be simpler in its construction than this five-foot ladder,--not even a hoe, an ax, or a spade. Appellant had at least equal knowledge with the company, as to the nature and condition of the ladder.

The right of the plaintiff to maintain this action is founded upon the negligence of the defendant in not furnishing a proper ladder for the use of the plaintiff in the work he was engaged to perform. It rests upon the principle that it is the duty of the master to the servant, and the implied contract between them, that the master shall furnish sufficient, properly constructed, and safe machinery, or other materials and appliances to be used in the course of his employment and necessary for the service. As a general...