the case. The Salem Stone and Lime Company . Tepps. Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156; Parke Co. Coal Co. v. Barth, 5 Ind. App. 159; Lake Erie, etc., R. R. Co. v. McHenry, 10 Ind. App. 525. We find nothing in the decision of the case of Chicago, etc., R. R. Co. v. Fry, Admx., 131 Ind. 319, which contravenes this holding. Whatever may be there held concerning the necessity of pleading want of inspection specially, must be limited to the peculiar case then under consideration, wherein a distinction is made between the duty owing from a railroad company with reference to those cars received by it from other roads simply to be forwarded, and those used by it in its own regular busi ness. That the defect in this instance might have been discovered by the exercise of reasonable diligence upon the part of appellant, is quite plain. The verdict is that the condition of the drill leg could have been discovered either by "taking hold of the leg and shaking it, with reference to ascertaining if it was loose in its socket," or by taking out a pin, and then taking out the leg itself, but that the appellant had made no examination or inspection for two years before the accident. Neither can it be rightfully said that the appellee assumed the risk because his opportunity to discover the defect was equal to that of the appellant. It is true, that where a defect is open and obvious to both master and servant, both will ordinarily be chargeable with notice of its existence. Evansville, etc., R. R. Co. v. Henderson, 134 Ind. 636; Swanson v. City of Lafayette, 134 Ind. 625. Where, however, the defect is latent, the master and servant are not equally chargeable with knowledge of its existence, although they may have equal opportunities to ascertain it. This is true for the very obvious reason The Salem Stone and Lime Company v. Tepps. that the duties resting upon them to search for or discover it are not the same. Both master and servant must exercise reasonable care, but reasonable care upon the part of the servant does not require of him an inspection to discover latent defects, while reasonable care upon the part of the master does require such inspection from him. Pittsburgh, etc., R. W. Co. v. Woodward, 9 Ind. App. 169, Wabash, etc., R. W. Co. v. Morgan, 132 Ind. 430; Matchett v. Cincinnati, etc., R. W. Co., 132 Ind. 334; Lake Erie, etc., R. R. Co. v. Mugg, Admr., 132 Ind. 168; Ohio, etc., R. W. Co. v. Pearcy, 128 Ind. 197; Bailey v. Rome, etc., R. R. Co. (N. Y.), 34 N. E. Rep. 918; 14 Am & Eng. Encyc. of Law 854; Parke Co. Coal Co. v. Barth, supra; Cincinnati, etc., R. R. Co. v. McMullen, Admr., 117 Ind. 439; Louisville, etc., R. W. Co. v. Buck, Admr., 116 Ind. 566. The defect in this case was admittedly a latent one. Where, by the terms of his employment the duty of inspection is expressly imposed upon the servant, a different rule would doubtless apply. Here there was no such duty resting upon the servant. In our opinion, none of the objections urged by the appellant's learned counsel are tenable. Judgment affirmed. Filed September 26, 1894. The Pennsylvania Company v. Hixon. No. 1,014. THE PENNSYLVANIA COMPANY v. HIXON. RAILROAD.-Passenger Alighting From Moving Train.-Contributory Negligence.--Personal Injury.—It is not an act of ordinary prudence for a passenger to leap from a train, in the darkness of night, when the train has passed the proper station and is running at an increasing rate of speed, all of which the passenger was aware of while he was yet upon the platform of the car, and before he had begun to descend the steps for the purpose of alighting. From the Greene Circuit Court. S. O. Pickens, for appellant. D. E. Beem and W. Hickam, for appellee. REINHARD, J.-Hixon sued the appellant company for damages on account of personal injuries incurred through its alleged negligence, and recovered a verdict and judgment for $2,000. The overruling of its motion for a new trial is the only error upon which the appellant predicates its prayer for a reversal of the judgment. It is insisted that the verdict is not sustained by the evidence, and in this connection it is contended, among other things, that such evidence conclusively shows the appellee to have been guilty of contributory negligence. The negligence complained of consists in the appellant's failure to stop its train, on which appellee was a passenger, a sufficient length of time to enable appellee to alight in safety at the station to which he had taken passage, and for the further failure to provide the station platform and place where passengers had to get off the train in the night time with sufficient light to enable them to see where to step off safely. The evidence is somewhat conflicting as to whether The Pennsylvania Company v. Hixon. the train actually came to a stop at the appellee's station, but it is agreed that as the train approached said station its motion was gradually decreased until it arrived at the platform, when, after a halt of only a moment or two, if, indeed, it came to a full stop at all, it immediately started again with a gradually accelerating speed. It appears from the appellee's own testimony that when the whistle had been sounded and the station announced, he immediately, in company with a traveling companion, left his seat in the smoking car and proceeded to go out on the front platform of such car, which was the proper place for him to alight. Here he discovered that the train was not standing still, but moving at a rate such as a man would travel "when walking a pretty good walk." He then stepped across upon the rear platform of the baggage car, caught hold of the railing next to the end of such car with one hand, holding a sack filled with bananas in the other, and while the train was moving at a constantly increasing rate of speed, and after it had passed what appellee termed the "landing place," sprang or stepped off, was violently thrown to the ground, and received the injuries complained of. Thomas Vandeventer, plaintiff's traveling companion, and witness, testified as follows: "Q. I want to ask you now what was done with reference to getting off at Farmers, just describe what occurred there? A. They run up there and kind of checked, I wouldn't say whether they stopped still or not, if they did we didn't get there. As quick as they called the station I started to the steps to get off, I got there, saw they were moving off; the doctor he got by around me, went off down the steps; I spoke to him once not to jump off but he was so far gone he went off. "Q. Was there any reason why you didn't try to go The Pennsylvania Company v. Hixon. ahead down the steps? A. I didn't propose to jump off when the train was moving up." This testimony, which is uncontradicted, is in our opinion conclusive proof that if the appellant's negligence, as charged in the complaint, may be said to have been a proximate cause of the appellee's injuries, it is equally true that the appellee himself contributed to the unfortunate result by his own inexcusable negligence. We do not assert here that the mere act of a passenger in voluntarily alighting from a moving train is negligence per se. Indeed, the contrary has been repeatedly held in our courts. Louisville, etc., R. R. Co. v. Bean, 9 Ind. App. 240 and authorities there cited. But where, as in the present case, the facts are undisputed, and point conclusively to the negligence of the plaintiff, a verdict can not be upheld. No person exercising ordinary prudence will attempt to leap from a train, in the darkness of night, when such train has passed the proper station, and is running at an increasing rate of speed, of all of which the passenger is apprised while yet upon the platform of the car, and before he begins to descend the steps for the purpose of alighting. The appellee should have remained on the train till it stopped, and if he had been wrongfully carried past his station he was not without his remedy against the carrier. Toledo, etc., R. R. Co. v. Wingate (Ind. Supr.), 37 N. E. Rep. 274. The appellant is entitled to a new trial. Filed Sept. 19, 1894. |