Terre Haute & I.R. Co. v. Pruitt

• Decision Date: 28 June 1900
• Citation: 25 Ind.App. 227,57 N.E. 949
• Court: Indiana Appellate Court
• Parties: TERRE HAUTE & I. R. CO. v. PRUITT.

25 Ind.App. 227

57 N.E. 949

TERRE HAUTE & I. R. CO.

v.PRUITT.

Appellate Court of Indiana.

June 28, 1900.

Appeal from superior court, Vigo county; S. C. Stimson, Judge.

Action by Younger W. Pruitt against the Terre Haute & Indianapolis Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.McNutt & McNutt and D. Strause, for appellant. J. O. Piety and Geo. M. Crane, for appellee.

COMSTOCK, J.

Appellee brought this action against appellant to recover damages for personal injuries alleged to have been received by him while in appellant's employ. The complaint is in one paragraph, a demurrer to which for want of facts was overruled, and the cause was put at issue by a general denial. A trial by jury resulted in a verdict in favor of appellee for $2,000. Appellant's motion for a new trial was overruled, and judgment rendered for the amount of the verdict. The only specification of the assignment of errors discussed is the action of the court in overruling appellant's motion for a new trial.

It is alleged, in substance, in the complaint, that on the 3d day of January, 1896, the defendant was the owner and operator of a line of railroad leading in and through the city of Terre Haute; that plaintiff was in its employ as a brakeman, whose duty, among other things, it was to couple and uncouple cars, and give signals for the starting of defendant's trains; that on said day plaintiff was one of a crew of men in charge of a certain train of defendant, consisting of a number of freight cars and a locomotive, which train was about to depart from defendant's yards, about Fourteenth street, in the city of Terre Haute, for points west; that just before said train departed it was standing across said Fourteenth street; that at said point said train was cut in two portions, in order to permit travelers on and along said Fourteenth street to cross defendant's road and right of way; that immediately before said train's departure this plaintiff, in the discharge of his duties as brakeman, coupled said portions of said train at said point; that immediately thereafter, at 5 o'clock a. m. on said 3d day of January, 1896, while it was very dark, said train was started towards the west, and that then and there plaintiff stepped to the rear right-hand corner of one of the cars in said train, and was in the act of getting on said car, and on top thereof; that on the right side and near the rear end thereof, a few feet above the bottom of said car, was a hand hold, 2 feet in length, and extending lengthwise of said car, except that the rear end was several inches higher than the front end thereof; that underneath the right-hand rear corner of said car was a foot step; that on the rear end of said car, and near the right-hand corner, was a ladder reaching to the top of said car, all of which appliances were placed on said car for the purpose of enabling employés to get on and off the said car in the discharge of their duties, and the said ladder was so placed that it was necessary to use the said hand hold and foot step in mounting it; that plaintiff, in order to get on said car, placed his foot on said foot step, underneath the said corner of said car, and with his right hand took hold of said hand hold; that said hand hold, at the end next to the rear end of said car, came loose, causing the plaintiff to fall down between said car and the one next following thereto, on the track; that plaintiff's left hand was caught underneath the wheels of the last-named car, and was mangled, bruised, lacerated, and crushed; that plaintiff “received the injuries hereinbefore mentioned without any fault on his part, but wholly by the fault of the defendant in this, to wit, that defendant carelessly and negligently permitted the said hand hold to become loose, insecure, and unsafe, all of which was unknown by this plaintiff, and which was known to this defendant, and could have been known by defendant by the exercise of reasonable care and diligence and inspection.” At the time of the accident, appellee was 40 years old; had been engaged in the business of railroading 14 years, and employed as brakeman by the defendant about 1 year. The manner of the accident was proven substantially as alleged. Appellee was furnished a book containing rules for brakemen. One of the rules, with which appellee was acquainted, contained the following: “They must examine and know for themselves that the brake shafts and attachments, ladders, running boards, steps, hand holds, and other parts and mechanical appliances which they are to use, are in proper condition, and, if not, put them so, or report them to the proper parties and have them put in order, before using.”

Counsel for appellant discuss the action of the court in giving to the jury instruction numbered 2 requested by appellee, modified by the court, and given as modified. This is made the seventh reason for a new trial. The instruction is as follows: “The court instructs you that defendant was in duty bound to exercise reasonable care in furnishing plaintiff reasonably safe appliances and machinery with which plaintiff might perform the work within the scope of his employment as brakeman, and plaintiff, under the law, had a right to presume that defendant had performed its duty in this respect; and if you should find that the defendant failed or neglected to perform such duty, and you should further find that by reason of such failure plaintiff was injured, and without any fault on his part,-if you should so find from a preponderance of the evidence,-then you should find for the plaintiff.” The objection urged to this instruction is that it omits the essential fact that plaintiff must be ignorant of the defect. It is claimed that freedom from fault and ignorance of the defect are distinct elements in cases of this kind. In the recent case of Railway Co. v. Glover (Ind. Sup.) 57 N. E. 244, this question is directly decided. In passing upon the correctness of an instruction given to the jury in the case last named, the court, by Monks, J., said: “It was alleged in the complaint that appellant had full knowledge of the defects mentioned in said instruction, and that the decedent had no knowledge thereof. Under the allegations of the complaint, appellee was required to prove, not only that the decedent had no knowledge of said defects, but that he could not have known them by the exercise of ordinary care. Stone Co. v. Summit, 152 Ind. 297, 299, 300, 53 N. E. 235, and cases cited; Pennsylvania Co. v. Ebaugh, 152 Ind. 531, 535, 53 N. E. 763. It will be observed that said instruction wholly ignores the decedent's knowledge of the defects mentioned in said instruction, and directs a verdict in favor of appellee even though the decedent may have had full knowledge of said defects or dangers, or could have had such knowledge by the exercise of ordinary care. If he had knowledge of such defects and danger, or could have had such knowledge by the exercise of ordinary care, then he assumed the risk resulting therefrom, if thereafter he voluntarily continued in the service. Stone Co. v. Summit, 152 Ind. 297, 299, 300, 53 N. E. 235;Pennsylvania Co. v. Ebaugh, 152 Ind. 531, 533, 535, 53 N. E. 76, and cases cited; Railway Co. v. Parker (this term) 56 N. E. 86; Railroad Co. v. Kemper, 147 Ind. 561,...