The Pennsylvania Company v. Ebaugh
| Decision Date | 10 May 1899 |
| Docket Number | 18,383 |
| Citation | 53 N.E. 763,152 Ind. 531 |
| Parties | The Pennsylvania Company v. Ebaugh |
| Court | Indiana Supreme Court |
From the Marion Circuit Court.
Reversed.
Samuel O. Pickens, for appellant.
William V. Rooker, for appellee.
Appellee brought this action against appellant to recover damages for the loss of an arm which resulted from injuries received while attempting to couple cars while in the service of appellant as a brakeman on one of its freight trains. The complaint is in three paragraphs. A demurrer to each was overruled. Answer in general denial. Verdict and judgment for appellee. Error is assigned upon the overruling of the demurrers to the complaint; in overruling appellant's motion for judgment upon answers to interrogatories notwithstanding the general verdict; and in overruling appellant's motion for a new trial.
The negligence charged in the first paragraph relates to the order of the conductor to the plaintiff to couple two cars of different construction,--the draw-bars of one being higher than the draw-bars of the other, and the deadwoods so negligently constructed and maintained that the cars were but eight inches apart when the deadwoods collided,--which conditions were known to the defendant, and unknown to the plaintiff, and on account of which conditions the plaintiff, in attempting to couple said two cars, was caught between them, held fast, and injured. The second, in addition, alleged that the north rail of the track where the plaintiff was ordered to make the coupling had a strong sharp splinter of iron protruding therefrom, and that, when the plaintiff stepped in to make the coupling, said splinter penetrated his shoe and held him fast, whereby he was injured. The third charges that the night was very dark, and the plaintiff, acting under the rules and regulations of the company, and orders of the conductor, took his station at the standing car, and signaled for the backing and slowing up of the train, but, instead of coming back slowly, the conductor negligently cut two cars from the rear of the backing train, that, unrestrained, rushed violently and unexpectedly upon and injured him.
Appellant requested the court to charge the jury that if they found the plaintiff was injured solely by the negligence of the conductor of the train, and that the defendant was free from fault in employing said conductor, or in retaining him in its service, such injury was the result of the negligence of a co-employe, and that they should find for the defendant. Appellant's counsel says in his brief: "The overruling of the demurrer to each paragraph of the complaint, and the refusal to give said instruction to the jury, present the question of the validity of the Employers' Liability Act." No objection is made to either paragraph of the complaint, nor to the refusal of the court to give said instruction number twenty, further than that the act of 1893 (Acts 1893, p. 294, section 7083 Burns 1894), upon which it is claimed they rest, is obnoxious to the Constitution. Since the brief was written, this court has decided the question here propounded adversely to the position assumed by the appellant. Pittsburgh, etc., R. Co. v. Montgomery, ante, 1; Pittsburgh, etc., R. Co. v. Hosea, ante, 412.
The correctness of certain instructions given and refused is challenged by appellant's motion for a new trial. Appellee submits that the instructions given and refused are not properly in the record, because no filing of the same is disclosed. Both sets are made part of the record by order of court, and both are fully set out in the order. This brings them properly into the record. Close v. Pittsburgh, etc., R. Co., 150 Ind. 560, 50 N.E. 560.
Appellee also contends that neither the instructions given nor those refused are in the record so as to question them severally. The alleged error is stated in the motion for a new trial as follows: For "error of the court in refusing to give to the jury each of the instructions severally asked, numbered one, two, three," etc. For "error of the court in giving to the jury each of the instructions given by the court numbered one, two, three," etc. "Each" is a word of distribution,-- implies severalty,--and the assignment is sufficient to challenge each instruction of each set. Terre Haute, etc., R. Co. v. McCorkle, 140 Ind. 613, 40 N.E. 62.
Instruction nineteen given by the court is as follows: "(19) If you find from a fair...
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