
    The Indianapolis and Cincinnati Railroad Company v. Love.
    la a suit against a railroad company, by an employb engaged as an engineer in running a train upon the road, to recover for injuries sustained in such service, the plaintiff must allege and prove negligence on the part of the company, by means whereof the injury was caused.
    There is no implied warranty, generally, of the completeness or fitness of the road or rolling stock, as between the company and their employes.
    But there are many exceptions. Bor instance, if a defect existed in the road which was known to the company, but which it was impossible for them to remove immediately, and in consequence of such defect the road was unsafe but not impassable, and yet they should suffer an employb, in ignorance of the defect, to attempt to pass upon the road, and injury should thereby result to him, the company would be liable. So, on the other, hand, if the employh had knowledge of the defect, and the employers had not, the latter would not be liable. And where both parties had such knowledge, each takes the risk, unless the company undertake to give special directions as to the mode of operating.
    Whether it is the duty of the company or of their engineer to see to and keep in safe condition a crossing, or other unsafe point on a railroad, is a question of fact for the jury.
    
      It seems, that where an injury to an employe of a railroad company resulted from his own negligence or carelessness, in failing to discharge some reasonable duty; or whore the employfe and the company were equally to blame for the injury, the company is not liable.
    APPEAL from the Shelby Circuit Court.
    
      Saturday, June 26.
   Hanna, J.

Love sued the appellants, and alleged that on the first of March, 1854, he was in the employment of the said company as engineer, and whilst so engaged in running an engine, &c., the same “ ran off the track, in spite of the reasonable care and diligence of the plaintiff, and which running off was in consequence of the imperfect and insufficient connection of the track where the said track crossed other tracks — the defendants being bound to keep said track in good running condition;” and that his leg was unavoidably crushed, &c.

Demurrer to the complaint, assigning two causes—

1. That it does not state facts sufficient, &c.

2, That it shows that the plaintiff was in the employment of the defendants, &c.; and therefore, &e.

. The demurrer was overruled, and the defendants thereupon answered in four paragraphs.

Reply filed. Trial by a jury. General verdict for the plaintiff; and also, at the request of the defendants, a special finding upon particular questions of fact. Motion for a new trial overruled. Judgment for the plaintiff for 3,000 dollars.

The first error assigned is upon overruling the demurrer to the complaint. The appellants contend that the plaintiff being in the employment of the company as an engineer in running a train over their road, he must be presumed to know the condition of the road, and to havé undertaken to run the risk. To this proposition the plaintiff replies . that his theory of the case is that the defendants employed him as engineer to run a locomotive on a track reasonably fit and safe for the purpose, and by the contract of hiring. it was implied and contemplated that he would take all the necessary and incidental risks of that particular service, whilst it was implied and contemplated that the defendí ants should furnish a track embracing bridges, culverts, switches and crossings reasonably fit and safe for the purpose.

It is further argued by the appellants, that the complaint should not only aver that the defendants had knowledge of the condition of the road, but should also negative a like knowledge on the part of the plaintiff. To this, the plaintiff answers that this is, so far as it can affect the case, a matter of defense which the plaintiff is not bound to anticipate in his pleadings.

We think the demurrer should have been sustained for the first cause assigned.

In a suit against a railroad company by an employé engaged in running a train upon the road, for injuries sustained in such service, the proposition is so reasonable that he should be required to allege and prove negligence upon the part of the company, by means whereof the injury was brought about or caused, that we cannot conceive any other rule would be equally just between the parties.

We do not, as is insisted in argument, think that there is any implied warranty, generally, of the completeness or fitness of the road or rolling stock, as between the employer and employes.

It is almost impossible to lay down any general rale upon the subject, that circumstances might not exist maldng a case an exception to. For instance, as a partial exception to the above proposition, if a defect existed in the road which was known to the company, but which it was impossible for them to immediately remove or remedy, and in consequence thereof the road was unsafe but not impassable, and yet they should place an employé upon the road, and suffer him, in ignorance of said defect, to attempt to operate it, and injury should thereby result to him, certainly there would be a liability. So, to the reverse, if the employé had knowledge of the defect, and the employer had not, we suppose such employer would not be liable. And a still more difficult question would be presented where both parties had this knowledge, and injury should result from an attempt to operate the road. In this latter instance we think the true rule of decision is, that each party takes the risk, unless the employer undertakes to give special directions as to the mode of operating. Then, if, in following those directions, injury should result, by reason of adhering to such directions, liability would attach.

The reason in such cases is, that upon knowledge being brought home to the employé that a cause exists making the service more than ordinarily unsafe, he is at liberty to require the cause to be removed, or defect remedied, and if that were not done, he might quit the service without incurring-loss or legal liability. But if instead of removing the cause or applying the remedy to the defect, the employer undertakes to give special directions, &c., he would thereby assume the risk, whilst the employé was in the discharge of those directions. ,

It follows, therefore, that the complaint is insufficient, if for no other reason, because of the want of an allegation of negligence or want of care upon the part of the company in the construction of the road, or that they had knowledge or notice of its imperfection, and notwithstanding continued to use it, or some averment equivalent to. such charge of negligence.

The imperfect connection of the track might have existed in consequence of internal and invisible defects in the materials employed, which had escaped the closest scrutiny and set at naught the exercise of the utmost care and diligence of the company.

The second cause assigned in the demurrer is based upon the assumption, attempted to be maintained in the brief, that an employé cannot recover of his employer for injuries received whilst in such employment.

The proposition is too broad. There are many cases in which such actions have been maintained — among others the following: Fitzpatrick v. The New Albany, &c., Railroad Co., 7 Ind. R. 436; Gillenwater v. The Madison, &c., Railroad Co., 5 id. 339; The L. M. Railroad Co. v. Stevens, 20 Ohio R. 415; Keegan v. The Western Railroad Co. 4 Selden, 175; Noyes v. Smith, 28 Vermont R. 59. And see Redfield on Railways, 387.

The next error assigned is upon the ruling of the Court in giving and refusing instructions. The instructions asked and refused are, in many particulars, similar to those given. Such refused instructions will not therefore be noticed in detail. One position assumed by defendants, and which was not covered by the instructions given, was, that if the crossing was unsafe except at slow speed, and known to the plaintiff to be so, it was his duty, as engineer and manager of a train, to see “that the track, the movable chairs and rails at that place were in their proper place and as safe as they could be made by putting the movable rails and chairs carefully in their proper places, and if plaintiff failed to do so, and ran his train on the crossing without knowing whether the movable rails and chairs were pro-t perly placed or not, &c., he would be guilty of negligence, and could not recover.”

Instead of the above instruction, the principle of which was asked in several forms, the Court told the jury that it was proper for them to determine from the evidence whose duty it was to keep the track in proper order at the crossing, and if they found that it was the duty of the defendants to do so, and not the duty of the plaintiff, and if the plaintiff exercised due care and skill, &c., and had good reason to believe that the chairs and rails were in a safe condition, &c., then the plaintiff would be entitled to recover, if the crossing was unsafe, &c.

In effect, the instruction given assumed that it was a question of fact for the jury to determine whether it was the duty of the plaintiff to do certain things, whilst that refused treated it as a question of law, fixing.the duty upon the plaintiff.

There were other instructions asked by the defendants and refused, to the effect that if the plaintiff by his carelessness or negligence contributed to produce the injury, he > could not recover.

The instruction given upon this point was, that if the injury was brought about by the carelessness or negligence of the plaintiff in failing to discharge any reasonable duty; or if the plaintiff and defendants were equally to blame for the injury, the finding should be for the defendants.

The facts, as shown by the evidence, upon which these questions arose, were, in substance, that the defendants, in the construction of a railroad, crossed the tracks of two other railroads, where the tracks of those roads were near to each other, and near their junction — so near that one rail would reach across both tracks; that for some weeks previous to the injury complained of, the. locomotive, cars, &c., of the defendants had been run across and over the tracks of the other two roads several times each day, by means of detached rails which could be taken up and laid down at pleasure, and secured, so far as- they were secured, by a wrought piece of iron, called a chair, at each end; that they were put down to pass the cars, &c., of defendants, and removed that they might not obstruct the passage of cars, &c., on the other two roads; that the plaintiff, who was the engineer in charge of a construction train — there being no conductor on it — had passed this crossing in this manner with his train many times.

The evidence was conflicting as to whether such mode of arranging a crossing was safe at any time, under the most favorable view of it; and it was also conflicting as to the duty of the engineer, having in charge a locomotive, in reference to the examination of - the manner in which the rails were placed and fastened at each time he might cross.

W. J. Peaslee and J. Ryman, for the appellants.

M. M. Ray, for the appellee.

There was also some slight conflict as to whether the plaintiff had, at the particular time of the injury, approached the ■crossing in the most skillful and careful manner.

It was a question of fact, for the jury to determine from the evidence, whether it was a duty incumbent upon the plaintiff to see to and maintain the road, at that particular point, in proper order; The ruling of the Court upon instructions involving that point was therefore correct.

The instruction asked and refused upon the subject of negligence, did not embody the law, for the reason that it would prevent a recovery if the plaintiff had contributed, however remotely, to produce the injury, by his negligence, notwithstanding it might have been produced by the immediate carelessness of the defendants. The instruction given is nearer the rule laid down by this Court in the case of The Indianapolis, &c., Railroad Co. v. Caldwell, 9 Ind. R. 298.

Per Curiam. — The judgment is reversed with costs. Cause'remanded, &c.

Davison, J., was absent. 
      
       Mr. Peaslee cited the following authorities: The plaintiff being in the employment of the company as an engineer in running a train over the road, he must be presumed to know the condition of the road, and to have undertaken to run the risk. 4 Met. 49. — Farwell v. The Boston, &c., Railroad Co., id. 36.—1 Am. Railr. Cases, 339.—Hayes v. The Western Railroad Co. 1 Am. Railr. Cases, 564, 568, and notes.
     
      
       Mr. Ray cited the following authorities: The master may be liable to his servant for an injury resulting from the negligence of the master. 24 Vt. R. 487.-4 Seld. 175.—5 Ind. R. 467.—19 Conn. R. 566.-5 Ind. R. 339.-7 Ind. B. 474.—13 Ill. R. 585.—15 id. 468.-3 Ohio R. (N. S.J 201.—16 Barb. 353.-7 Ind. R. 437.
      If the fault be equal the servant cannot recover; and the degree of negligence in either master or servant, or both, is a question for the jury. 5 Ad. & El. 747.-4 Met. 49.-27 Vt. R. 49 to 62.-23 id. (8 Washb.) 387.—21 Barb. 339.—24 Eng. Law & Eq. R. 396.—10 N. Hamp. R. 188.—21 N. Jersey R. (9 Harris.) 203.—3 Eng. Law & Eq. R. 473.—2 Railw. Cases, 114.
     