The Evansville and Richmond Railroad Company v. Barnes
Decision Date | 28 March 1894 |
Docket Number | 16,655 |
Citation | 36 N.E. 1092,137 Ind. 306 |
Parties | The Evansville and Richmond Railroad Company v. Barnes |
Court | Indiana Supreme Court |
From the Monroe Circuit Court.
The judgment is reversed, with instructions to proceed in accordance with this opinion.
M. F Dunn, for appellant.
C. C Matson, J. Giles, J. R. East and W. C. East, for appellee.
The matter in controversy has been substantially passed upon by this court in the case of this appellant against Tyre S Henderson, decided on April 4th, 1893.
The Henderson suit grew out of the same wreck, and the facts upon which the court reversed the judgment of the court below are almost identical with those shown in this case. That is, we have the same conductor, the same engineer, the same cross-ties and derailment. Instead of an inexperienced minor we have an experienced railroad man and an adult. In lieu of a mere employe, ignorant of the road and but a short time in its employ, as in the former case, we have, in the person of the plaintiff, the superintendent of bridges and an assistant superintendent of construction, who had been with the road during the entire progress of its construction, frequently over it, and thoroughly familiar with its condition--one who inspected the track, including the portion complained of, immediately before the accident, and who made no protest, but permitted the train to be run at a rapid rate of speed when it was within his power, owing to his position, to have prevented it.
We have before us a plaintiff, superior in authority to all the construction trainmen, who, from his experience, by a mere casual observation, had he looked, could have seen that the ties were not properly loaded, and who made no objection to the manner of loading, and assumed the risk.
The appellee's own testimony condemns his right to a recovery. As a witness, he says, in substance: * * *
Q. "Did you make an inspection of the road-bed and cross-ties at the point of the accident?" A. "Yes; that became a part of the bridge; I stated that." * * * "We carefully inspected to see that it was all alike at that particular point, and safe to run over." * * * * * * "The half tieing system is the ordinary method of constructing a new railroad." * * * "I did not notice how the cross-ties were loaded; I never looked."
Felix Polk, who was engaged with the appellant that day, says: "We inspected the bridges and the track that morning."
From the testimony of the appellee as to the condition of the track observed by him and Felix Polk, immediately before the accident, it is evident he knew it was a new track, half tied, and not ballasted.
In another part of his statement, he says: * * *
The witness also says he did not look to see whether the ties were braced or not, and that he could have told at a glance.
Evansville, etc., R. R. Co. v. Henderson, 134 Ind. 636, 33 N.E. 1021.
Where the danger is equally open to the observation of both the master and the servant, they are upon an equality, and the master is not liable, as a general rule, for the resulting injuries. Evansville, etc., R. R. Co. v. Henderson, supra; Griffin v. Ohio, etc., R. W. Co., 124 Ind. 326, 24 N.E. 888 (328).
The accident, to some extent, must be attributed to the speed with which the train was run. This is the appellee's contention, also; but the necessity of the speed at which the train was propelled at the time of the injury, is not apparent from the evidence adduced on the trial. On the contrary, it is shown that the engineer had orders to run slowly, which he violated.
In the case of Evansville, etc., R. R. Co. v. Henderson, supra, on p. 641, the court said:
In Columbus, etc., R. W. Co. v. Arnold, Admr., 31 Ind. 174, it is said: * * ...
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Evansville & R.R. Co. v. Barnes
... ... W. Miers, Judge.Action by Stewart Barnes against the Evansville & Richmond Railroad Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals ... ...