Haskell & Barker Car Co. v. Przezdziankowski-170 Ind. 1. ville, etc., R. Co. v. Bates (1897), 146 Ind. 564, 570; Neutz v. Jackson Hill Coal, etc., Co. (1894), 139 Ind. 411, 416; McMullen v. Carnegie Bros. & Co. (1893), 158 Pa. St. 518, 27 Atl. 1043, 23 L. R. A. 448; McGill v. Maine, etc., Granite Co. (1899), 70 N. H. 125, 46 Atl. 684, 85 Am. St. 618. Appellee's counsel concede that the verdict cannot rest upon the fifth paragraph of complaint, and this paragraph will not receive further consideration. The insufficiency of the first and second paragraphs of complaint has been earnestly and ably urged. Without dis cussing these errors separately, it is our conclusion 2. that the merits of the controversy so fully appear from the answers of the jury to interrogatories as to enable and to require us to end the litigation. It appears from the special findings of the jury: That on June 7, 1905, appellant was a corporation owning and operating a plant for the manufacture of railroad cars at Michigan City. Appellee was thirty years of age, and possessed of good eyesight and hearing. He had been employed as a miner in Pennsylvania, worked three years in a factory at South Bend, and entered appellant's employ July 16, 1902, and remained in its service for three years immediately before receiving his injury. He worked one year in the wheel foundry, one year in the blacksmith shop, and the last year as a roustabout. While so employed, at 9 o'clock a. m. on June 7, 1905, appellee was injured at a point between the foundry and the blacksmith shop, on what was formerly known as Sixth street in Michigan City. During all of the period of appellee's employment appellant owned and maintained a railroad track commencing at a three-throw switch situated at a point east of its foundry and proceeding thence south and curving into Sixth street and running thence west through its plant and upon said street, and north of said track was situated a coal bin or storage, to and from which appellant ran coal-cars about every other day. Appellee was injured at a point about one hundred fifty feet east of the end of said coal bin, Haskell & Barker Car Co. v. Przezdziankowski-170 Ind. 1. at which point Sixth street was sixty feet wide between the buildings. During the time appellee had worked for appellant piles of iron had stood east of said coal bin and north of the railroad track, and at the time appellee was injured five or more piles of such iron were in said place. During the winter previous to his injury appellee assisted in hauling iron, known as channel bars, upon certain small trucks from said point to appellant's blacksmith shop, which work was in all respects similar to the work in which he was engaged when injured. Appellee worked one-half day June 6, 1907, at the same work and in the same place at which he was injured on the following day, and the work which he was doing when injured was that for which he was hired by appellant; but appellee was not fairly familiar with the general situation of that part of appellant's plant known as Sixth street. Appellant owned and operated in the conduct of its business four small locomotive engines, known as pony engines, one of which was drawing the coal-car which occasioned the accident. The engine had no tender, but was provided with foot-boards, both in front and in the rear. About three minutes before appellee was injured said engine backed in from the three-throw switch, passed the point where appellee was at work, with engineer Clader in charge, and switchman George Romel standing on the rear foot-board and looking in the direction in which said engine was moving. Frank Taylor, another switchman, whose work was also in connection with said engine, walked from the three-throw switch to the coal-car, but did not follow the track past where appellee was at work. Herman Pietrowski, who was in appellant's employ and engaged in the same work as appellee, removed a truck from the track about ten feet east of where appellee was at work, and after said engine backed west placed the same between the truck at which appellee was at work and the truck which was caught by the coal-car, and but for this the jury do not know whether the injury would have occurred to appellee or not. Romel coupled the engine to a Haskell & Barker Car Co. v. Przezdziankowski-170 Ind. 1. coal-car which had been standing at the coal shed for two days, and Taylor released the brake upon said car. This car was not owned by appellant, but was delivered to it loaded with coal to be unloaded, and bore upon its sides the letters "Montour R. R. Co." As this car moved east there was upon the north side and at the west end thereof a defective step or stirrup, which was bent out of proper position about four inches toward the north, but this step did not catch upon the handle of a truck near the track at a point west of where appellee was working. At and before the time of this accident appellant had in use 450 trucks, three of which, immediately preceding appellee's injury, were at the point where he was injured, but the jury say that there was no evidence showing how long they had been there, or who put them there. The engine drawing the coal-car moved east at the rate of three miles per hour, with the engineer in charge, Romel on the foot-board between the engine and the car, and Taylor upon the rear of the coal-car. At the time of the accident no iron was piled in Sixth street south of the track, and the most westerly pile on the north side of the track was four feet four inches therefrom and about twelve feet six inches high, the next pile was four feet two inches therefrom and ten inches high, the next pile eight feet eight inches therefrom and ten feet two inches high, the next two piles nine feet nine inches therefrom, and the next eight feet five inches therefrom. The spaces between the piles varied from six to eight inches, and the total distance from the west. side of the most westerly pile to the east side of the most easterly pile was twenty-six feet seven inches. At the time. of the accident appellee was engaged in loading iron on a truck from the pile nine feet nine inches from the railroad track, which pile was three feet long, seventeen and one-half inches wide, and four feet three inches high, the pile next east of appellee was four feet six inches high, and the next pile west of him three feet eight inches high. The truck with which appellee was at work was four feet eight inches Haskell & Barker Car Co. v. Przezdziankowski-170 Ind. 1. long, two feet ten inches wide, and two feet four and onehalf inches high, and a truck of about similar dimensions, upon which the coal-car caught, stood parallel with the track between the pile of iron ten inches high and the track, and the truck placed by Pietrowski stood with its length about north and south. There was nothing at the place where appellee was working when injured to prevent him from seeing the empty truck that was afterwards caught, had he looked. The truck with which appellee was working, and the other trucks in the vicinity thereof, were in no wise defective, and the place at which he was working when injured was in no wise dangerous, except from the presence of the empty truck near the railroad track. Some lookout is necessary other than a man preceding such engines on foot in moving about appellant's plant, and Romel or Taylor should have preceded the locomotive as it passed along the track going east at the time appellee was injured. The second paragraph of complaint charged appellant with negligence in knowingly permitting an empty truck to remain in a position imperiling the safety of em3. ployes. The jury expressly found that there was no evidence to show when or by whom the truck was placed in the position complained of, and hence there can be no support for a conclusion that appellant was guilty of the negligence charged in this paragraph, conceding that appellant was in duty bound to keep watch over such transitory conditions as the temporary position of an empty truck. Connors v. Elmira, etc., R. Co. (1895), 92 Hun 339, 36 N. Y. Supp. 926. The first paragraph of complaint is drafted upon the theory that the injury was produced by the concurrent neg ligence of appellant and a fellow servant of appellee's. 4. The principle upon which this paragraph is founded is well settled, that if an employer is guilty of a negligent breach of duty, which becomes a proximate cause of an injury to an employe, the employer is not exonerated from Haskell & Barker Car Co. v. Przezdziankowski-170 Ind. 1. liability for such injury because the negligence of a co-employe concurred in producing the injury. 3 Elliott, Railroads (2d ed.), §1306. It is manifest that the primary act of negligence upon which this case must rest was the placing and leaving of an empty truck within dangerous proximity to the rail5. way switch track. This was confessedly the act of a fellow servant, for which no recovery can be had without concurring negligence on the part of appellant. The vital question for our determination, therefore, is whether appellant is shown by answers to the interrogatories to be free from negligence which the law regards as a proximate or concurring cause of appellee's injury. The jury also found that the place in which appellee was working when injured was in no wise dangerous, except from the presence of the empty truck, about twenty feet distant and near to the railroad track, which appellee could have seen had he looked. The culpable act with which appellant is charged and sought to be bound is in failing to provide a fireman for the pony engine, to keep watch along the north side of the track and give warning of this obstruction. It is not alleged that a fireman was necessary to the proper and safe management of the engine, or that such an employe had ever been required or used in operating it, and was negligently permitted to be absent on this occasion, but the case is builded upon the theory that a fireman if present would have been stationed upon the left side of the engine cab as it went forward, keeping constant lookout for obstructions, and through his vigilance the accident might have been averted. It is in sisted that appellee was set to work in an unsafe place. 6. The master's duty requires him to provide a reasonably safe place in which his servant is to work, and to exercise ordinary care to keep the same in reasonably safe condition. An employe assumes under his contract of 7. employment, the ordinary risks of the business in which he engages, including the risk of injury from |