York v. Peele
| Decision Date | 04 January 1929 |
| Docket Number | No. 12751.,12751. |
| Court | Indiana Appellate Court |
| Parties | NEW YORK, C. & ST. L. R. CO. v. PEELE. |
OPINION TEXT STARTS HERE
Appeal from Howard Circuit Court.
Action by Ed Peele against the New York, Chicago & St. Louis Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Superseding opinion in 157 N. E. 106.
Certiorari denied 49 S. Ct. 263, 73 L. Ed. -.
Bell, Kirkpatrick, McClure & Elliott, of Kokomo, Russell P. Harker, of Frankfort, and W. A. Eversman, of Toledo, Ohio, for appellant.
Forest E. Jump and Overson & Manning, all of Kokomo, for appellee.
Action for damages for personal injuries sustained by appellee while employed by appellant as yard conductor in switching cars, such injuries alleged to have been caused by the negligence of appellant in placing its tracks with sufficient clearance.
To the complaint appellant filed answer in general denial and an affirmative answer pleading assumption of risk. Reply in denial.
On the trial before a jury, a verdict was returned in favor of appellee for $7,500. Appellant filed motion for new trial, which was overruled, and judgment was rendered on the verdict.
Appellant has assigned as error the court's action in overruling its motion for new trial, under which are presented the questions hereinafter considered.
It is practically conceded by the parties hereto that appellee was, at the time of his injury, engaged in interstate commerce, and that thereby the case is controlled by the provisions of the Federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), which retains the doctrine of assumption of risk where no safety appliance is involved, and under which we must determine whether, under the evidence in this case, appellee assumed the risk of the condition of appellant's tracks which resulted in the injury for which he sues. It is undisputed that appellant had built two switch tracks so close together that appellee, while in the employ of appellant as a conductor of a switch crew and in the performance of his duty in such employment, and while descending from the top of a box car, using the ladder on the side thereof, was crushed and injured by a passing train or cut of cars. Appellee had been employed in the switch yard, where the accident and injury occurred, for several years past, and it is appellant's contention that the condition of the tracks in that they were too close together was so open to appellee's observation that he assumed the risk of being injured in the manner in which he was injured by continuing in the employment of appellant.
[1] It is unquestionably the law, as appellant contends, that where the doctrine of assumption of risk applies, an employee assumes all risks necessarily incident to his employment, whether known or not, including all risks which are open or apparent and arising from his employer's negligence. But it does not follow from this that the employee assumes the risks not ordinarily incident to the employment, and which result from the employer's negligence. It is undisputed that the tracks in the switch yard were too close together for the safety of appellee, and, while it appears that appellee had worked in these yards for a number of years, there is no evidence that the unsafe proximity of the tracks had ever been called to his attention. Appellant must have known through its employees charged with the laying of these tracks, and who did lay them, that they were closer together by measurement than they should have been for safety, and that there was danger when cars were passing upon the respective tracks that employees might be injured, but it was not a part of appellee's duty to measure the spaces between these tracks.
[2][3][4] He had a right to assume that his employer had exercised reasonable care to make the place of his employment safe and he was not bound to know from such observation as he could make in passing that the tracks were so close together as to endanger the lives of workmen on the trains when they were passing each other. So far as the evidence goes, the condition of these tracks in being too close together was peculiar to the place of the accident, it not appearing that there was any other place where the tracks were so laid, and the fact that the tracks were so placed because of location of buildings belonging to Swift & Co. does not make a sufficient excuse for constructing a dangerous place in which employees were compelled to work. There is no evidence that appellee had ever discovered the dangerous proximity of the tracks, or that he had in any way ever been warned of the same, and it is altogether probable that cars might have passed each other at this dangerous location without it being discovered by appellee that they were close enough to crush him had he been on the side of one of the cars.
In Baltimore, etc., R. Co. v. Roberts, 161 Ind. 1, 67 N. E. 530, the action was by a freight brakeman for personal injuries resulting from alleged negligence of the employer in maintaining its tracks in such close proximity to each other, and in leaving a car loaded with lumber standing on one of its tracks, that the employee was struck as he passed on a car in the line of his duty, and it was there held that the employee was not bound, in the absence of knowledge to the contrary, to go upon a search and ascertain, by measurement or otherwise, whether the tracks were so close together as to render them unsafe for the operation of cars thereover, that he had a right to assume that the tracks were a reasonably safe distance apart, and that there was no assumption of risk on his part.
[5] In Cleveland, etc., R. Co. v. Belange, 78 Ind. App. 37, 135 N. E. 367, in sustaining a verdict and judgment for the plaintiff, who was a railroad employee, this court stated the rule to be that, if the servant is injured in the line of his duty by reason of the neglect of the master to make the place and the ways and means, tools, and appliances, reasonably safe, he is entitled to recover, unless the negligence of the master and...
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