Southern Indiana Ry. Co. v. Moore

• Decision Date: 01 May 1902
• Citation: 29 Ind.App. 52,63 N.E. 863
• Parties: SOUTHERN INDIANA RY. CO. v. MOORE.
• Court: Indiana Appellate Court

29 Ind.App. 52

63 N.E. 863

SOUTHERN INDIANA RY. CO.

v.MOORE.¹

Appellate Court of Indiana, Division No. 2.

May 1, 1902.

Appeal from circuit court, Lawrence county; W. H. Martin, Judge.

Action by Mary Moore against the Southern Indiana Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

F. M. Trissal, E. J. Brooks, and U. F. Brooks, for appellant. East & East and McHenry Owen, for appellee.

COMSTOCK, C. J.

Appellee brought this action against appellant, alleging the death of her son by the negligence of appellant. The complaint was in two paragraphs. They are substantially the same, and, in brief, alleged: That her son, Adolphus Moore, was on April 5, 1900, an infant of 19 years, in the employment of appellant in its stone quarry, which was operated by appellant for the purpose of getting rock for ballasting appellant's roadbed. Appellant, in getting out the stone, used dynamite to loosen the stone from the earth, which work was done under charge and control of Conner, superintendent, and Donovan, the boss, they having full charge of the work. That this dynamiting was done when the men were not at work. That the blasting was dangerous work, but that during the working hours small charges were used to clear out the holes, called “springing the holes,” so that larger charges could be exploded in the holes. That the ledge where Moore worked was a steep bluff, 30 or 40 feet high, and he was required to perform his services at the bottom of the ledge. That said defendant had prepared several holes in the bluff for springing, and had warned Moore and others to move to a place of safety when the holes were sprung. Then said superintendent and boss directed Moore to return to work, which he did, and a short time thereafter several large stones that had been jarred from their position rolled down the bluff onto Moore, so injuring him that shortly after he died. That Moore could not see the condition of said stones, and that they had been jarred from their positions, and did not and could not know their unsafe condition. That the superintendent and boss were in a position to know the condition of the stones. That appellee was a widow, and dependent upon the deceased for support. The jury trying the cause returned a verdict for appellee for $1,750, and answers to interrogatories. Appellee remitted $1,475 of the verdict, and judgment was rendered for $275.

Appellant relies for a reversal of the judgment upon the fourth and fifth specifications of error; the fourth being the overruling of appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict; the fifth, the overruling of appellant's motion for a new trial.

The court, of its own motion, gave to the jury instruction No. 4. It is insisted by counsel for appellant that in this instruction the jury were told that the servant did not assume any risk as to the premises, “the unsafety of which he could have known by the exercise of ordinary diligence”; that it limits the obligation of the servant to guard only against danger of which he has absolute knowledge. It is the law that an employé must use his senses with the diligence of an ordinarily prudent person...