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track, and ever since said time the defend in working order, at the time of his injury. ant had negligently suffered the derail The law did not require the company to put remain out of repair and out of use, and in in the derails, but it did require it to employ a condition to permit cars to run from the such means at that, and all other sidings, side track on to the main track; that before as would make the operation of the railroad the time the train operated by the plaintiff reasonably safe against derelict cars escaping was due to pass IIaskells, the defendant from the siding to the main track. The caused to be run in from the main track on means was a matter of choice, within the to the side track an empty freight car, and limits of reasonable safety, but when the negligently left the freight car standing upon company elected to put in derails as its chosthe side track unfastened, "well knowing at en safety device against such dangers, it the time that the aforesaid derail switch was, while it pretended to maintain that arrangement had been spiked and fastened," system, as much duty bound to keep the thereby rendering the switch in a condition derails in proper working order as it was that cars could run out of the siding on to to keep any other part of its track, or apthe main track; and negligently failed to pliances, in proper condition. A workman fasten, or in any manner to secure said going into the employ of a railroad company freight car so as to prevent its leaving the is bound to take notice of all the apparent side track and running out upon the main situations, conditions, and appliances, in track, and that the defendant had full knowl ways, and working places, that have been edge of all the matters averred in the para provided by the company and is required graph. In addition to the allegations of the to assume the risk of all the usual dangers third, it is a verred in the fourth paragraph that are incident to such places and condithat the defendant negligently left the freight tions in conducting the business of the railcar standing upon the siding, "well knowing road. And when such conditions and apat the time that the derail had been spiked pliances have been employed by the company and fastened, and was not in working order for many years, as alleged, and the workand the side track so connected with the man has taken notice thereof, and shaped main track that cars could pass from the his conduct with respect to care, in accordside to the main track, and negligently fail ance therewith, it would be unreasonable ed to fasten, or in any manner to secure and unjust to permit the company to make said car so as to prevent it from leaving the a change, or permit the same to become and side track and negligently failed to repair remain out of working order, and thus inthe derail and put the same in working order crease the hazard of the employment, withso as to prevent the wind, or other power, out notice to those exposed, and it will not, from forcing said car out upon the main therefore, do to say that an employé injured track. The defendant, at said time, had full by such new and unknown peril had assumed knowledge of all the matters and things the risk. Hunt v. Kane, 100 Fed. 256, 40 averred in this paragraph of complaint." C. C. A. 372; Bender v. St. C., etc., R. Co.,

We are unable to see how the general rule 137 Mo. 240, 250, 37 S. W. 132; Sherman v. asserted by appellant's counsel can help the Chicago, etc., Ry. Co., 34 Minn. 259, 25 N. client in this case, namely, that the master is W. 593. Both the third and fourth paranot bound to furnish the servant with the graphs of complaint show that the plaintiff newest and best safety devices, nor any par knew of the derailing device and that, when ticular kind, but that the master's duty is in working order, no car could pass to the fulfilled when he furnishes a reasonably safe main track from the siding without being place to work, and employs such appliances accompanied by some one to set and adjust as are reasonably safe for the work designed. the derail; that the plaintiff passed the As respects the assumption of the risk, the point in the night, had never used the siding, question here is not whether the defendant and had no knowledge, or means of knowlwas bound to put in, and keep in repair, edge, that the device was not in working orthe derails to keep stored and detached cars der, or that the company had abandoned it. from being fortuitously forced out on to the Under such facts it cannot be said, as mat'main track. The fact is that the defendant ter of law, that the plaintiff, even though he did put them in, and had maintained them approached the place in the face of a vioas a safety device for many years before the lent storm, took upon himself the risk of plaintiff's injury. The question presented, an unfastened car being driven by the wind tuerefore, is, can the company, after having from the siding to the main track, or that adopted and successfully used the derails he was guilty of contributory negligence for for a long period, permit them to get and not observing, on account of the storm, inremain out of working order, for an unrea creased care to avoid accident from such sonable length of time, or remove or destroy escaped car. The demurrer to each the the device altogether, without substituting third and fourth paragraphs of the comother efficient means of escaping the same plaint was properly overruled. peril, and be unanswerable to an engineer 3. It is earnestly contended that the first injured by the absence of the derail, who had and second instructions given by the court knowledge of the device, and who was rely upon the request of the plaintiff were ering, and had the right to rely, upon its being roneous and harmful to appellant. In the

78 N.E.-13

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first the court called attention to the plain- sonable precaution against the car being tiff's theory of the case, and in the second to forced out of the siding by the wind, as the essential elements the plaintiff should would amount to ordinary care under all the establish to entitle him to recover, both of facts and circumstances existing at that parwhich, in substance, follow: First. The plain-ticular siding. The master owes to his servtiff sues for damages for injuries which ant ordinary care to provide a reasonably he claims were caused by reason of the neg- safe working place. But, as a rule, he is not ligent failure of the company properly to required to adopt any particular mode of maintain a derail switch arrangement, by construction, kind of device, or appliance, to reason of which negligence an empty box be in the exercise of ordinary care. The test car was permitted to blow out on the main generally is, not whether this or that track and cause the injury. Second. The kind of means have been adopted, but whethplaintiff has the burden of proving all ma- er, with the method of construction, or parterial allegations of his complaint. To re- ticular device or appliance employed, the cover he must prove that, when injured, he place, under all the circumstances of the was in the employ of the company, and that case, is reasonably safe for a performance of the injury was the result of the negligence the duties of the employment. Wabash, etc., of the defendant, in its failure properly to R. Co. v. Ray, 152 Ind. 392, 398, 51 N. E. maintain the derail switch arrangement, and 920; Railroad Co. v. Driscoll, 176 Ill. 330, in allowing an empty box car to be upon its 52 N. E. 921; Kern v. De Castro, etc., Co., main track and cause the collision. "The es- 125 N. Y. 50, 25 N. E. 1071; Bohn v. Railroad sential elements to be proven by the plaintiff Co., 106 Mo. 429, 17 S. W. 580; Hewitt v. in order that he may recover are, that he Flint, etc., R. Co., 67 Mich. 61, 34 N. W. 659; shall establish to your satisfaction that the Norfolk, etc., R. Co. v. Cromer, 101 Va. 667, said derail switch arrangement was defect- 44 S. E. 898; Labatt, Master & Servant, ive, or not in working order; that the plain- vol. 1, $ 35; 3 Elliott's R. R. § 1272; Sheets tiff did not know of said condition, and that v. Railroad Co., 139 Ind. 682, 689, 39 N. E. the company had notice or knowledge of the

154. It is not negligent per se to fail to same, or that the nonworking condition of maintain a derailing device. Norfolk, etc., the derail had existed for such a period of R. Co. v. Cromer, 101 Va. 667, 44 S. E. 898. time prior to the injury that in your judg. It is not always negligence to fail to provide ment the company ought to have known of a side track with stop blocks. Hewitt v. it. Then in addition if you find that the Flint, etc., R. Co., 67 Mich. 61, 34 N. W. 659. plaintiff himself was not guilty of negligence It is also essentially necessary, in such cases, contributing to the injury, he has made out that the plaintiff prove that the injuries comhis case and should recover." In other plained of resulted proximately from the alwords, the jury is informed that the plaintiff leged negligence of the defendant. Railroad has made out his case and should recover Co. v. Young, 146 Ind. 374, 376, 45 N. E. if he has satisfactorily established three 479, and cases cited. In the former part of things: (1) That the derail switch was defect- the instruction the court directed, in a genive, or not in working order; (2) that the eral way, that the plaintiff must prove that plaintiff did not know of the condition; (3) his injuries resulted from the negligence of that the defendant did know, or ought to the railroad company in failing to maintain have known it.

the derail, but this element of the case is We do not see how the last instruction can wholly omitted from that part of the inbe sustained. It implies the absolute duty struction in which the court undertakes to of the railroad company to maintain the de- sum up the particular facts that will entitle rail in working order. It impliedly denies the plaintiff to recover. The language is: the right of the company to employ any other "The essential elements necessary to be provkind of device, however efficient, and ap- en by the plaintiff, in order that he may reproved by railroading experts, to prevent cars cover are,

* then, in addition, if you from being blown out of the siding. It im- find that the plaintiff himself was not guilty plies that the failure to keep the derail in of negligence contributing to the injury, he working order was conclusive evidence of has made out his case and should recover." the company's negligence. It is entirely too The very best that may be said of the innarrow. In effect it takes the question of struction in this particular is that it is amdefendant's negligence from the jury. There biguous and calculated to confuse and miswas evidence tending to show that the box lead the jury. car, after being placed on the side track, was Another objection to the instruction, equalso locked and fastened by the brake as to ly fatal, is found in the second essential ele. render it immovable by the wind, except by ment enumerated, namely, the limitation of an unusual and extraordinary wind storm. the plaintiff's knowledge, to actual knowl. Under this evidence-assuming that the derail edge. The words of the court are: “That was out of working order—the company was the plaintiff did not know of such condition." entitled, on the subject of its negligence, to So far as the question related to the plainsubmit to the jury the question, whether the tift''s contributory negligence the fact of his manner in which the box car was fastened knowledge, actual or contributory, was matand secured on the side track was such rea- ter of defense, and not necessary to the plain

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tiff's right of action, but as showing his right Appeal from Circuit Court, Madison Counto recover, and thať he did not take upon ty; Jno. F. McClure, Judge. himself the risk of the impaired derails, as Action by the state, on relation of Edward a peril ordinarily incident to the employ. Brough, against John Terheide and others. ment, or as one so apparent, and so long From a judgment sustaining a demurrer to existing that he should have known it by the complaint, relator appealed to the Appelthe exercise of ordinary care, and held to late Court, from whence the cause was trans. have assumed it by continuing in the service, ferred to the Supreme Court under Burns' the want of knowledge both actual and im Ann. St. 1901, § 1337u. Affirmed. puted became material facts for him to es

W. R. Myers, S. L. Brooks, B. R. Call, and tablish, to warrant a recovery. Indianapolis,

E. R. Call, for appellant. Kittinger & Diven, etc., Co. v. Foreman, 162 Ind. 85, 101, 69 N.

for appellees. E. 669, 102 Am. St. Rep. 185, and cases cited; Indiana, etc., Oil Co., V. O'Brien, 160 Ind. JORDAN, C. J. This is an action to re266, 270, 65 N. E. 918, 66 N. E. 742, and cases cover on the bond of a retail liquor dealer. collated; Pennyslvania Co. V. Ebaugh, 152 Appellee Terheide is the principal in the bond Ind. 531, 534, 53 N. E. 763; Chicago, etc., in suit and his co-appellees are sureties there R. Co. v. Glover, 154 Ind. 584, 586, 587, 57 on. The complaint is in two paragraphs, N. E. 244; Wood, Master and Servant, $ 422. under each of which damages are claimed by

For error of the court in giving instruction the relator, Edward Brough, by reason of a No. 2 the judgment must be reversed. Nu

personal injury sustained by him on account merous other questions are presented, relating of the illegal sale to him of intoxicating liqto the admission and exclusion of evidence, uors. Each of the defendants to the action but as such questions are not likely to arise separately demurred to each paragraph of again upon a retrial of the case, we omit the complaint for insufficiency of facts. The their consideration.

demurrers were sustained to each paragraph, Judgment reversed, and cause remanded, and judgment was rendered against appellant with instructions to grant the appellant a on demurrer. The errors herein assigned are new trial.

predicated upon these rulings of the lower court.

Appellees have moved to dismiss the appeal (166 Ind. 689)

on the ground of appellant's neglect in the STATE ex rel. BROUGH . TERHEIDE preparation of the brief to comply with the et al. (No. 20,838.)

rules of this court; but inasmuch as oppos(Supreme Court of Indiana. June 7, 1906.)

ing counsel have supplied the omissions at

tributed to appellant, the motion to dismiss 1. APPEAL DISMISSAL - GBOUNDS-WAIVEB OF DEFECTS.

is denied. A motion to dismiss an appeal on the The first paragraph of the complaint, after ground of appellant's failure to comply with the disclosing that appellee Terheide had been rules of the court in the preparation of his brief, will be denied, where opposing counsel have

duly granted a license by the board of comsupplied the omissions attributed to appellant.

missioners of the county of Madison to re[Ed. Note.For cases in point, see vol. 3, tail intoxicating liquors in the city of AnCent. Dig. Appeal and Error, $8 3165, 3166.] derson, and that he, together with his co-ap2. INTOXICATING LIQUOBS-CIVIL DAMAGES — pellees, executed the bond in suit in accordILLEGALITY OF SALE.

ance with the provisions of section 7279, Acts Sp. Sess. 1875, p. 58, c. 13, § 15, making it a misdemeanor to sell liquors to an in

Burns' Ann. St. 1901, proceeds to allege the toxicated person, is still in force so far as it

following facts: On November 2, 1902, one aïds in support of a civil action under Burns' William Tyner was acting as a bartender Anp. St. 1901, § 7288, making every person and agent of the defendant Terheide in the unlawfully selling liquor liable personally and on his bond.

sale of intoxicating liquors in said defend3. SAME-DEFENSES-SALE BY AGENT.

ant's saloon. It is averred that up to the The fact that an unlawful sale of liquor to time of 3 o'clock p. m, on said day the rean intoxicated person was not made by defend lator, Brough, had purchased of the said ant, but by his bartender, who had authority to conduct and carry on the saloon business, is

Tyner and drank in appellee's saloon four no defense to an action on the bond.

glasses of intoxicating liquor, to wit, beer; [Ed. Note.-For cases in point, see vol. 29,

that at the said hour of 3 o'clock upon said Cent. Dig. Intoxicating Liquors, 91.]

day, at the time when he entered said saloon, 4. SAME-PLEADING.

he was in an extremely drunken and intoxiActs Sp. Sess. 1875, p. 58, c. 13, 8 15, makes it a misdemeanor to sell liquor to an in

cated condition, which intoxication was in toxicated person, and Burns' Ann. St. 1901,

part due to liquors sold to him by said Tyner ; 7288, makes a liquor dealer liable personally that he was partially delirious, and reeled and on his bond for unlawful sales of liquor. and staggered in walking, all of which facts Held, that a complaint in an action against a liquor dealer and the sureties on his bond, alleg

were then and there well known to said Tying that defendant sold liquor to plaintiff while

ner, but notwithstanding this knowledge of he was intoxicated, and that defendant per the latter relative to the relator's intoxicated mitted plaintiff while so intoxicated to be

condition, said Tyner then and there sold to thrown down and injured, was demurrable as showing no connection between the unlawful

him one glass of whisky and three glasses of sale and the injury.

beer, all of which intoxicating liquors were

drunk by the relator. About 4 o'clock in the rel., 19 Ind. App. 100, 49 N. E. 42. It follows afternoon of said day, after the relator bad that appellee Terheide, under the facts, , drunk the intoxicating liquors as hereinbe- through his agent or bartender, must be held fore alleged, and while he was in an extreme- to have violated the provisions of said section ly intoxicated condition as aforesaid stated, 15 by selling intoxicating liquors to the resaid Tyner, the agent of the defendant Ter- lator while the latter was in a state of intoxi. heide, suffered and permitted one Frank Ty- cation. Consequently he is shown to have ner, without cause, provocation, or excuse, to been a wrongdoer and must be held liable violently throw the relator to the floor, personally, or on his bond, as the case may whereby his right leg was broken, etc., and be, for all injuries or damages caused either by reason thereof he has been damaged, etc. directly or remotely by reason of said wrong. The second paragraph alleges the same facts. ful act. Homire v. Halfman, supra; MCas the first, but in addition thereto expressly Carty v. State, ex rel., 162 Ind. 218, 70 N. E. avers that said 2d day of November, 1902, 131. The fact that the unlawful sales of the was the first day of the week, commonly liquors in question were not personally made called Sunday; that defendant Terheide to the relator by Terheide, the proprietor of unlawfully kept his saloon open for the the saloon, but were made by his bartender sale of intoxicating liquors on said day, or agent, who at the time had authority to and by his said agent, William Tyner, conduct or carry on the saloon business for sold such liquors in his said saloon to all Terheide, in no sense can be said to relieve who applied therefor; that his saloon was appellees herein of liability on the bond. the greater part of the said day filled with They are just as liable and in like manner men who were buying and drinking intoxi- and to the same extent that they would be cating liquors therein; that at the time the had the sales in question been made in person relator entered said saloon upon said day, by Terheide, the proprietor of the saloon. between the hours of 3 and 4 o'clock p. m., Nelson v. State ex rel., 32 Ind. App. 88, 69 it was filled with a large number of drunken N. E. 298, and authorities there cited. and disorderly men, who were drinking in- But the principal and fatal infirmity of toxicating liquors; that said William Tyner, each paragraph of the complaint is that unthe agent of the defendant Terheide, then and der the averments thereof no connection there suffered and permitted one Frank Ty- whatever with the unlawful sales of the liqner to violently throw the relator to the floor, uor to the relator and the injury which he without cause, provocation, or excuse, there- sustained by the assault made upon him by by breaking his right leg, etc., for which Frank Typer, a third party, is shown. There damages are demanded.

are no facts alleged from which it may be Section 7279, Burns' Ann. St., which em- legitimately inferred that such sales of liqbraces section 4 of the act of 1875, providing uor in any manner occasioned or resulted in for the granting of a license to retail intoxi- the alleged assault made upon the relator by cating liquors (Acts Sp. Sess. 1875, p. 56, c. Frank Tyner. There is an entire absence of 13) provides that the person obtaining such any positive averments to establish that Tyner license shall give a bond in the sum of $2,000, was, at the time he assaulted the relator, inconditioned "that he will keep an orderly and toxicated by reason of any unlawful sale of peaceable house and that he will pay all fines liquor made by either Terheide or his agent. and costs that may be assessed against him In State ex rel. v. Knotts, 24 Ind. App. 477, for any violations of the provisions of this act 56 N. E. 941, the Appellate Court held that and for the payment of all judgments for civ- there was no liability on the part of a saloon il damages growing out of unlawful sales, as keeper for damages arising out of the murder provided for by this act.” Section 7288, of the relator's husband committed by the Burns' Ann. St., which is section 20 of said agent of the retailer in that case; said agent act of 1875, declares that "every person who at the time being in charge of the saloon, shall sell or give away any intoxicating liq- which was then and there kept and mainuors in violation of any of the provisions of tained in a disorderly manner. On no view this act shall be personally liable and also li- of the case, under the facts alleged in the able on his bond," etc., "as required by sec- complaint, can the latter be held to state a tion 4 of this act, to any person who shall good cause of action on the bond in suit. sustain any injury or damages to his person The demurrer, therefore, was properly susor property, or means of support, on account tained. of the use of such intoxicating liquors so sold Judgment affirmed. as aforesaid." Each of the paragraphs of the

(167 Ind. 262) complaint shows that the agent of Terheide sold intoxicating liquors to the relator when

WABASH RIVER TRACTION CO. V. the later was in a state of intoxication, in

BAKER. (No. 20,788.)* violation of section 15 of the act of 1875. (Supreme Court of Indiana. June 7, 1906.) This section is still in force so far as it aids 1. CARRIERS-INJURY TO PASSENGER-ACTION in support of a civil action under section -QUESTION FOR JURY. 7288, supra. Mulcahey V. Givens, 115 Ind.

In an action against a street railroad for

injuries to a passenger, held, that the question 286, 17 N. E. 598; Homire v. Halfman, 156 whether she was guilty of contributory negliInů. 470, 60 N. E. 154; Baecher v. State ex

*Rehearing denied October 25, 1906.

gence in descending to the lower step of the car a customary seat within the car, this arguand making ready to alight when it should come

ment would impress us more favorably, but to a full stop was for the jury.

it can hardly be conceded that she was in a [Ed. Note.--Hor cases in point, see vol. 9. Cent. Dig. Carriers, $8 1385, 1402.)

place safe against such perils as produced 2. SAME-INSTRUCTIONS.

her injury, so long as she was required to In an action against a street railroad for stand, or to occupy an improvised seat in injuries to a passenger, the court instructed the doorway where she was liable to be that a higher degree of care is imposed on street

trampled by the standing passengers of the railways than on steam ones, and that if plaintiff, on giving her ticket to defendant's con

crowded car. The lateness of the hour, and ductor, notified him that she wished to be put the unusual number on board would naturally off at a certain regular stopping place, it was suggest the desirability of dispatch in the the duty of defendant to carry plaintiff safely there, and that its duty was not discharged until

discharge of passengers, and the slow speed it had set her down as safely as the means of

at which the car was running would ordi. conveyance and the circumstances of the case narily induce a person already standing to would permit. Held, while the opening state

believe that it was safe to move toward the ment of the instruction was not commendable, the instruction was not erroneous.

place of exit, and we cannot say that, under

the circumstances shown, appellee was guilty Appeal from Circuit Court, Huntington

of negligence in moving down to the lower County; Jos. O. Branyan, Judge.

step of the car, but affirm that the question Action by Ethel Baker against the Wabash

of her negligence was rightly submitted to River Traction Company. From a judgment

the jury for determination. Indianapolis, in favor of plaintiff, defendant appealed to

etc., R. Co. v. Hockett, 159 Ind. 677, 66 N. the Appellate Court, from whence the case

E. 39; Citizens', etc., R. Co. v. Merl, 26 Ind. is transferred, under Burns' Ann. St. 1901,

App. 284, 59 N. E. 491; Anderson v. Citizens', § 1337u. Affirmed.

etc., R. Co., 12 Ind. App. 194, 38 N. E. 1109; Barrett & Morris, for appellant. Shively Citizens', etc., R. Co. v. Spabr, 7 Ind. App. & Switzer and S. E. Cook, for appellee.

23, 33 N. E. 446; Chicago City Ry. Co. v.

McCaughna (I11.) 74 N. E. 819; Alton Light MONTGOMERY, J. Appellee recovered a & Traction Co. v. Oliver (Ill.) 75 N. E. 419. judgment for a personal injury sustained Complaint is made of the giving of instrucwhile being carried as a passenger by ap- tion No. 2, which reads as follows: "The pellant. The only assigned error relied up- court charges you that there is a higher deon is the overruling of appellant's motion for gree of care imposed upon street railways a new trial. The grounds of the motion than upon ordinary steam railways, and if urged upon us are insufficiency of evidence you should find in this case, by the evidence, to sustain the verdict and error of law in that the plaintiff was a passenger on one giving to the jury instructions numbered 2 of defendant's cars on the night in question, and 4 at the request of appellee.

returning from Boyd Park, bound for her Appellee was returning to the city of Wa- home in Wabash, and in giving her ticket bash from Boyd Park, and it was near mid- to the conductor, notified him that she wished night when she was hurt. The car was to be put off at the regular stopping place crowded, the seats were full, and passengers in said city, known as 'South Side,' it was sitting in the laps of others, the aisles and the duty of the defendant, the street car comvestibules were filled, and some boys were pany, to carry the plaintiff safely to said on top of the car. Appellee was required stopping place, and its duty toward the plainto stand until, becoming tired, she removed tiff as a carrier of passengers was not disher jacket and with it made a seat for her- charged or ended until they had conveyed self upon the step leading from the rear ner to the point designated, and set her vestibule into the car proper. She had noti- down as safely as the means of conveyance fied the conductor that she desired to get employed and the circumstances of the case off at "South Side,” a customary stopping would permit, she exercising at the time, place in the city of Wabash. As the car ap- due diligence and care, and not being guilty proached her destination its speed was slack- of contributory negligence." The opening ened until it did not exceed one mile per statement embodied in this instruction, that hour, whereupon appellee arose and de- a higher degree of care is imposed upon scended to the lower step ready to alight street railways than upon ordinary steam when the car should come to a full stop. railways, is not approved either as a proper The power was suddenly applied, causing method of defining a duty or as a correct the car to lurch forward, throwing the stand- statement of le law, although it was taken ing passengers off their balance, and bunch- from the opir in Anderson v. Citizens', ing them together, and throwing appellee etc., Ry. Co., 12 Ind. Apr. 194, 197, 38 N. E. against the vestibule door and out upon the 1109. Th care required of a steam railroad ground with great violence. Appellant's coun- for its passengers is nowhere stated in the sel argue from these facts that appellee volun- instruction, but that company is not before tarily left a place of safety, and took a peril- us, and if it were could not complain beous position upon the car, and that she is cause its duty was understated. The duty guilty of contributory negligence as a mat- of a street railway company towards paster of law. If appellee had been furnished sengers is defined with reasonable accuracy in

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