Fort Wayne, etc., Traction Co. v. Roudebush-173 Ind. 57. Starr v. Aetna Life Ins. Co. (1905), 41 Wash. 199, 83 Pac. 113, 4 L. R. A. (N. S.) 636; Leach v. Oregon, etc., R. Co. (1905), 29 Utah 285, 81 Pac. 90, 110 Am. St. 708; Kansas City, etc., R. Co. v. Morris (1906), 80 Ark. 528, 98 S. W. 363, 10 Am. and Eng. Ann. Cas. 618; Christopherson v. Chicago, etc., R. Co. (1907), 135 Iowa 409, 109 N. W. 1077, 124 Am. St. 284; Zoesch v. Flambeau Paper Co. (1908), 134 Wis. 270, 114 N. W. 485; McLeod v. Ginther's Admr. (1882), 80 Ky. 399; Illinois Cent. R. Co. v. Houchins (1907), 125 Ky. 483, 101 S. W. 924; Galveston, etc., R. Co. v. Mitchell (1908), (Tex. Civ. App.), 107 S. W. 374; Missouri, etc., R. Co. v. Williams (1908), (Tex. Civ. App.), 109 S. W. 1126. The court of its own motion gave the following instruction: "The employe in accepting employment assumes as part of such employment the usual and ordinary hazards inci6. dent to the discharge of the duties of his employment, and also all such hazards as are open and obvious to one who is in the exercise or discharge of such duties, or which could have been known to him by observation or by the exercise of reasonable care and diligence, or which were in fact known to him from any source whatever. But an employe does not assume in his employment hazards, if any, which are the result of the negligence of the master." It is contended that a servant assumes all known hazards, whether they arise from the negligence of the master or of others, and that the last sentence in the instruction quoted is manifestly erroneous. As a general rule, the servant is held to the assumption of all risks of the employment 7. known to him, including those springing from the master's negligence, unless such negligence consists in the violation of some statutory duty imposed for the safety of the employe. The jury expressly found that until the deceased met car No. 251 upon the curve he had no knowledge that it was upon the track, or was to start until 7:30 o'clock Fort Wayne, etc., Traction Co. v. Roudebush-173 Ind. 57. a. m., and that appellant, without the knowledge of Roudebush changed the bulletin, and started the car at 6:37 o'clock, without any orders to take siding No. 53, which was south of the point of collision. It is clear, therefore, that although the criticised part of this instruction was technically incorrect, it did not mislead the jury or affect the verdict, since the jury found that the deceased had no knowledge of the negligence of appellant which caused the accident. The error in this instruction was accordingly harmless. Pittsburgh, etc., R. Co. v. Higgs (1906), 165 Ind. 694, 4 L. R. A. (Ν. S.) 1081; Baum v. Palmer (1905), 165 Ind. 513; Cleveland, etc., R. Co. v. Miller (1905), 165 Ind. 381; New Castle Bridge Co. v. Doty (1907), 168 Ind. 259; Hammond, etc., Electric R. Co. v. Antonia (1908), 41 Ind. App. 335. Appellant requested the court to charge, that if the jury found that the negligence of the motorman on car No. 251, Grant Irons, was the cause of the injury and death of 8. the decedent no recovery could be had. The court was seemingly justified in refusing such instruction, on the ground that it was not applicable to the evidence. Appellant appears to have tried the case upon the theory that car No. 251 was rightfully upon the track, and that the proper passing point was at siding No. 54, which was north of the curve where the collision occurred. It is suggested that Irons was negligent in delaying the departure of his car, and in attempting to pass this curve on the schedule time of decedent's car. It is found to be true that this car left at the time stated, with knowledge of appellant, and without orders to pass car No. 24 at the siding south of the curve. Appellant is thus found to have been guilty of negligence, as charged, and, that being true, the tendered instruction was not proper. If the proffered instruction had been so drawn as to advise the jury that if it found that the accident was caused solely by the negligence of Grant Irons, a fellow servant, no recovery could be had against appellant, it would VOL. 173-5 Fort Wayne, etc., Traction Co. v. Roudebush-173 Ind. 57. have been in terms correct. But if appellant's negligence concurred with that of another in producing the in4. jury and death for which the action was brought, it would be liable, although the negligence of a fellow servant also contributed to the result. Boyce v. Fitzpatrick (1881), 80 Ind. 526; Louisville, etc., R. Co. v. Heck (1898), 151 Ind. 292; Haskell & Barker Car Co. v. Przezdziankowski (1908), 170 Ind. 1, 14 L. R. A. (N. S.) 972. This instruction was rightly refused. No error is made to appear in overruling appellant's motion for a new trial. The judgment is affirmed. ON PETITION FOR REHEARING. MONTGOMERY, C. J.-Counsel for appellant on petition for rehearing reassert the insufficiency of the complaint, and re argue other questions originally presented, considered 2. and decided by the court. The complaint is not to be commended as a model pleading, but if all its allegations were true appellant would not only be guilty of gross negligence, but almost of a wilful disregard for the lives of its employes. It is earnestly insisted that appellant had a right to run an extra car over its road, without regard to its usual custom, or the knowledge of employes on other cars, or the means of advising them, or the condition of the track, provided it used ordinary care in the premises. This contention may be conceded, but in this complaint it is made to appear, prima facie, that ordinary care for the safety of its operative men was not exercised. It is averred that appellant's officers and agents in charge of its road started a second car from LaFayette northward over a single track railway, knowing that the decedent's car coming south had the right of way, and, in the natural course of events, would meet the north-bound car upon a dangerous curve, and cause a collision, but gave no order or direction to the motorman or Fort Wayne, etc., Traction Co. v. Roudebush-173 Ind. 57. conductor of the north-bound car to take the siding immediately south of the curve. Counsel argue that the charge that appellant did not take the particular precaution mentioned is not sufficient to show the absence of ordinary care and to establish negligence. The principle relied on is true as a general rule, but here it appears that the second car was sent out under conditions that would make a collision upon a dangerous curve almost inevitable. It is inconceivable that proper management would permit the meeting of cars on a single track at such a point, and would not provide for their passing at a convenient siding. The south-bound car had the right of way, was not required to take a siding, and could not be expected to back up in case of a meeting between passing points. In the circumstances stated, it appears to us that the natural, ordinary and only reasonable provision to have been made for the passing of the cars was to direct the north-bound car to take the appropriate siding, which is alleged to have been immediately south of the curve, and that sending a man ahead on foot to give warning, as suggested, or any other arrangement which would permit the cars to meet where they could not pass, would have been absurd. It is alleged that no order to take the siding was given, and that the collision occurred as appellant's officers knew in advance that it naturally would occur. Taking all the allegations of the complaint together, we think it clearly appears and is properly alleged that the deceased was without knowledge of the peril to which he was exposed and did not assume the risk, and that the complaint is sufficient in all respects. The petition for rehearing is overruled. Romona, etc., Stone Co. v. Shields-173 Ind. 68. THE ROMONA OÖLITIC STONE COMPANY v. SHIELDS, BY NEXT FRIEND. [No. 21,246. Filed May 25, 1909. Rehearing denied October 15, 1909.] 1. APPEAL.--Assignments of Errors.-Ruling by Wrong Trial Court. -An assignment alleging that the Morgan Circuit Court erred in overruling defendant's demurrer to the plaintiff's complaint presents no question, where such demurrer was overruled by the Monroe Circuit Court. p. 70. 2. MASTER AND SERVANT.-Defective Derrick.-Evidence.-Evidence that a derrick was made to carry stone weighing not to exceed 1,500 pounds, and that defendant knowingly permitted its use in handling a stone weighing 4,000 pounds, thereby breaking, and injuring the plaintiff, sustains an allegation that such derrick, to defendant's knowledge, was not of sufficient strength to carry more than 2,000 pounds, and that with such knowledge, defendant overloaded same with a stone weighing 6,000 pounds, thereby causing it to break, to plaintiff's injury. p. 70. 3. EVIDENCE. - Opinions. Witnesses.-Non-Expert.-Competency.Jury.-Non-experts, after stating their experience in the use of derricks and of estimating their strength, are competent to testify what, in their opinion, was the capacity of the derrick in question, the weight of the testimony being for the jury. pp. 72, 75. 4. MASTER AND SERVANT. - Contributory Negligence. Choosing Dangerous Methods. Evidence. -The Supreme Court, in the absence of evidence thereof, cannot declare a servant guilty of contributory negligence, as a matter of law, for stooping down, at his employer's request, to pick up a tool, his head coming within range of a crank, which injured him, when he might have walked around so as to pick it up without being within the range thereof. p. 72. 5. MASTER AND SERVANT.-Contributory Negligence.--Assumption of Risk. Questions for Jury. The questions of the contributory negligence and the assumption of risk of a servant eighteen years old, who had worked for his employer in a stone mill for two days, who knew nothing of the capacity of a derrick used in lifting stones, and who, at his master's command, stooped to pick up a tool when he was struck by the crank of such derrick which was released by the breaking of a "dog" holding a stone, are for the jury. p. 73. 6. MASTER AND SERVANT.-Improper Use of Proper Machinery.Fellow Servants.—Superintendent. The overloading of a derrick, |
