Southern Railway Co. v. Bufkins

89 N.E. 326, 45 Ind. App. 80, 1909 Ind. App. LEXIS 269

Opinions

Roby, P. J.

It is alleged in the complaint that the appellant negligently permitted its railway track to have in it a low joint, and a defective, old and rotten cross-tie, because of which appellee, who was aboard a hand-car passing over said track, was thrown and injured. Tie is averred to have been in appellant’s employ as a bridge carpenter. The answer was a general denial. There was a trial by jury, verdict and judgment for $1,200.

The only error alleged is based upon the action of the court in overruling appellant’s motion for judgment on the answers to interrogatories, notwithstanding the general verdict. In support of this assignment it is argued that the appellant is shown not to have been guilty of negligence; that the appellee assumed the risk of the defective track, and that he was injured by reason of a condition which he was engaged in repairing.

1. 2. 3. The general verdict finds the negligence charged in the complaint. The answers to interrogatories do not negative the fact so found. It is found that appellee had been in appellant’s employ seven days, and that he had passed over the place where he was injured upon a hand-car “several times.” There is no finding that the appellee knew of the defect because of which the hand-car was derailed. Facts are not found showing that he should have known thereof. It is found that the railroad between Jasper and Huntingburg was in process of reconstruction, and that bridges were being elevated to conform to the new grade line, in which latter work appellee had been employed. These facts are not inconsistent with the safety of the track. They do not convey knowledge of the particular defect, and if they did would not be inconsistent with the nonappreeiation of the danger. Avery v. Nordyke & Marmon Co. (1905), 164 Ind. 186. Neither can low joints and rotten cross-ties be regarded as necessary incidents to the employment.

The well settled rule that, where a servant is employed to put a thing in a suitable and safe condition for use, the master is not required to have the thing in safe condition and good repair for the purpose of such employment, does not apply, for the reason that there is no finding that appellee was employed to put the appellant’s railroad track in a safe condition.

Judgment affirmed.