Tennis Company v. Davis

• Decision Date: 15 November 1910
• Docket Number: 7,104
• Citation: 92 N.E. 986,46 Ind.App. 436
• Parties: TENNIS COMPANY v. DAVIS
• Court: Indiana Appellate Court

92 N.E. 986

46 Ind.App. 436

TENNIS COMPANY v. DAVIS

No. 7,104

Court of Appeals of Indiana

November 15, 1910

Waiver of petition for rehearing November 17, 1910.

From Clark Circuit Court; Harry C. Montgomery, Judge.

Action by John Davis against the Tennis Company. From a judgment on a verdict for plaintiff for $ 472, defendant appeals.

Reversed.

M. Z Stannard and Jonas G. Howard, Jr., for appellant.

H. W Phipps, George C. Kopp and James K. Marsh, for appellee.

OPINION

COMSTOCK, C. J.

Appellee sued appellant to recover damages for personal injuries sustained by him while in the employ of appellant.

The complaint is in two paragraphs. The first alleges, in substance, that appellant was engaged in constructing an electric interurban railway; that in constructing said railway large wooden poles, known as trolley-poles, to which arms were fastened that supported the trolley-wire, were placed in an upright position parallel with said railroad track; that on November 18, 1907, said company was engaged in constructing said line; that on said day plaintiff was employed by defendant as a brakeman on defendant's work-train; that defendant erected all of said trolley-poles along said railroad track, graded the roadbed, laid the rails and ballasted said traction line; that defendant carelessly and negligently placed said poles four and one-half feet from said track, thereby rendering it dangerous to plaintiff in giving signals to the engineer, which facts were well known to defendant and of which plaintiff had no knowledge; that on November 18, 1907, plaintiff, while working for defendant company as brakeman on its work-train, and while in the proper discharge of his duties as brakeman, was ordered by defendant's foreman to give a certain signal to the engineer in charge of and operating the locomotive engine drawing said work-train; that it was the duty of plaintiff to obey and conform to the orders of said foreman; that in order properly to signal said engineer it was necessary for plaintiff to stand on and near the edge of said work-car, and endeavor to get the attention of said engineer by extending his right hand and arm from the side of said car upon which he was standing, and thereby give to said engineer the proper signal to stop; that while attempting to signal said engineer, as aforesaid, plaintiff's right hand and wrist, suddenly and without warning, came in violent contact with one of said trolley-poles located near said track, as aforesaid, thereby bruising and injuring the hand and wrist of plaintiff, all of which was caused by the carelessness and negligence of defendant in placing said poles within a distance of four and one-half feet of said railroad track; that if defendant had placed said trolley-poles farther away from said railroad track, which could have been done, said poles would have answered the same purpose.

The second paragraph alleges, substantially, the same facts as the first, except that it does not negative assumption of risk, and alleges that the pole which plaintiff's hand came in contact with was crooked; that owing to the carelessness and negligence of defendant in using said pole with the crook, causing that part of the pole to be nearer to the hand and arm of plaintiff in giving signals, he received the injuries complained...