Opinion
No. 13,074.
Filed October 31, 1928. Rehearing denied April 4, 1929.
1. MASTER AND SERVANT — Common-law Action for Personal Injuries — Instruction as to Federal Employers' Liability Law — Not Error. — In an action by an employee of an interstate railroad for damages for personal injuries alleged to have resulted from its negligence as he was leaving his place of employment at the close of the day, instructions that were proper under the evidence and which correctly instructed the jury if the federal Employers' Liability Law was applicable, were not error, although the complaint stated an action at common law. p. 101.
2. MASTER AND SERVANT — Federal Employers' Liability Law — Contributory Negligence — Not a Defense — Exception. — Under the federal Employers' Liability Law (U.S. Comp. Stat. 1926, § 8659, 45 USCA § 53), contributory negligence is not a defense to an action for personal injuries received by an employee of an interstate railroad in the course of his employment, but it is only to be considered in mitigation of damages, unless such contributory negligence is shown to be the sole cause of the injury. p. 102.
3. MASTER AND SERVANT — Federal Employers' Liability Law — Employee Leaving Place of Employment. — An employee of an interstate carrier, while leaving his place of employment at the close of his day's work, and while yet on his employer's premises, is discharging a duty of his employment. p. 102.
4. APPEAL — Refusing to Give Instruction — Covered by Instruction Given. — Refusal to give a requested instruction is not error when fully covered by instruction given. p. 102.
5. MASTER AND SERVANT — Action for Personal Injuries — Verdict for Plaintiff not Contrary to Law. — In an action by an employee of an interstate railroad for damages for personal injuries alleged to have resulted from its negligence as he was leaving his place of employment at the close of his day's work, and while yet on his employers premises, a verdict for the plaintiff was not contrary to law on the theory that plaintiff assumed all risks of his employment, there being evidence sufficient to show that defendant was negligent and that plaintiff was injured while engaged in his employer's service, although the complaint stated an action at common law. p. 103.
From Posey Circuit Court; Herdis F. Clements, Judge.
Action by William Schraeder against the Chicago and Eastern Illinois Railway Company. From a judgment for plaintiff, the defendant appealed. Affirmed. By the court in banc.
James H. Blackburn, Frank H. Hatfield, William C. Welborn, Louis L. Roberts, K.L. Richmond and H.T. Dick, for appellant.
Emra H. Ireland and Winfield K. Denton, for appellee.
This is an action by appellee against appellant to recover damages for personal injuries alleged to have been caused by reason of the negligence of appellant. A trial by jury resulted in a verdict and judgment for appellee for $200. The errors presented relate to the overruling of appellant's motion for a new trial, the particular specifications relied on being the giving and refusing to give certain instructions, and that the verdict is contrary to law.
The first contention is that the court erred in giving certain instructions, for the reason that each of them involves the federal Employers' Liability Act, while the complaint 1. presents an action at common law. There is no claim that these instructions did not correctly instruct the jury, if the federal Employers' Liability Act is applicable. Nor is there any claim that they were not proper under the evidence. This question has been so fully discussed by both the Supreme Court and by this court that we do not deem it necessary to enter into a discussion of the law upon the subject. See Vandalia R. Co. v. Stringer (1914), 182 Ind. 676, 106 N.E. 685, 107 N.E. 673; Grand Trunk, etc., R. Co. v. Thrift Trust Co. (1917), 68 Ind. App. 198, 115 N.E. 685, 116 N.E. 756. On the authority of these cases, we hold there was no error in giving the instructions of which complaint is made. See, also, Missouri, etc., R. Co. v. Wulf (1913), 226 U.S. 570, 33 Sup. Ct. 137, 57 L.Ed. 355, Ann. Cas. 1914B 134.
Instruction No. 3 tendered by appellant and refused was to the effect that, if appellee was guilty of contributory negligence, he could not recover. The evidence was sufficient to 2, 3. justify a verdict for appellee under the federal Employers' Liability Act. By § 3 of that act, contributory negligence is to be considered only in mitigation of damages (§ 8659 U.S. Comp. Stat. 1916, 35 Stat. at L. 65), unless such negligence is shown to be the sole cause of the injury. Pittsburgh, etc., R. Co. v. Edwards, Admx. (1921), 190 Ind. 57, 129 N.E. 310. Appellee, at the time of his injury, was leaving his place of employment. He was yet on his employer's premises. In leaving his place of employment at the close of his day's work, he was discharging a duty of his employment. Erie R. Co. v. Winfield (1917), 244 U.S. 170, 61 L.Ed. 1057, Ann. Cas. 1918B 662.
Complaint is made of the refusal of the court to give instructions Nos. 6, 7, 8 and 9 tendered by it. These instructions were fully covered by instruction No. 4 given 4. at the request of appellant. It follows there was no reversible error in the action of the court in refusing to give the requested instructions.
Appellant, assuming there was no evidence of negligence on its part, and that appellee was not engaged in any service for appellant, says appellee assumed all the risks, and for 5. that reason the verdict is contrary to law. Appellant's assumption is not tenable as there is evidence sufficient to sustain a finding that there was negligence on the part of appellant and that appellee was injured while engaged in the service of his master. It cannot be said that the verdict is contrary to law.
Judgment affirmed.