This was an action by an employé of the company, a brakeman, engaged on a passenger train, for an injury, &c. There was a trial — verdict and judgment for the plaintiff for 2,000 dollars. New trial refused, and motion in arrest overruled. v
The first error complained of is, in overruling a demurrer to the complaint, and in the refusal to arrest the judgment because of the alleged insufficiency of the complaint.
The complaint avers, among other things, that whilst so “ engaged, and whilst said train was running at a rapid rate, an axle of one of the cars broke, and precipitated the train off the track, and then and there, unavoidably on the plaintiff’s part, threw him between and under said cars, between which his hand was caught and crushed, and several of his fingers cut off, which has, &c.; the breaking of which said axle was caused partly by having the track too rough, and partly from a defect in the axle; all of which was negligently and carelessly permitted by the defendants,” &c.
It is objected to this complaint that there is no averment of a want of knowledge by the plaintiff of the defects complained of. In other words, it is insisted that the plaintiff *39should, in his complaint, negative a knowledge or notice by him of the condition of the road and machinery.
We do not think such averment necessary. It was a matter of defense, which would more properly appear in the answer, as it does, in point of fact, in the case at bar.
The plaintiff avers negligence upon the part of the defendants, to his injury. The defendants, by the demurrer, in effect, admit the truth of the allegation. This would be sufficient, upon this point, to entitle the plaintiff to recover, if no defense was set up.
The demurrer was correctly overruled.
The defendants answered in five paragraphs—
1. Admitting the employment and injury of plaintiff, and that it was caused by the cars being thrown from the track, in consequence of the breaking of a defective axle; but averring that the defect was unknown to the defendants. Denial to the residue of the complaint.
2. Admitting the injury; but averring due care in constructing the road and furnishing servants and cars, &c.; and charging that said plaintiff had full knowledge of the , condition of the road.
3. That the engineer in charge of the train ran the same at too great speed, and thereby carelessly and wrongfully caused, &c.
4. A general denial.
5. Similar to the second.
A demurrer was filed to all the paragraphs of the answer except the general denial, which was sustained as to the third, and overruled as to the other paragraphs, to which a reply by way of general denial was filed.
The counsel for the appellants states, in his brief, that the real question he desires to present is, “ can a servant maintain an action against his employer for an injury occasioned by imperfections in the things which he undertakes to operate with and upon, if he be fully advised of their true state and condition.”
In reference to this question, we have, at the present term, after a patient investigation, in the case of the same appellants against Love, come to a conclusion (1). With*40out doubt, the decisions upon this point have not been uniform in the several states, and in England; but that arrived at by us, is, we think, such as will come as near preserving the rights and interests of parties as any other.
W. T. Peaslee, J. Ryman (2), J. S. Scobey, and W. Cumback (3), for the appellants.Objection is now made to an instruction given to the jury; but the point is not reserved in such form as will, under the decisions heretofore made, enable us to pass upon it. Garrigus v. Burnett et ux., 9 Ind. R. 528.
An argument is made upon the ruling of the Court in sustaining the demurrer to the third paragraph of the answer; but as there was no exception to that ruling, we cannot examine its correctness.
It is assigned for error that the Court overruled the motion for a new trial. The counsel for the appellant say nothing upon the point in their brief, and we have not, therefore, closely examined the testimony in reference to whether it sustains the verdict.
Per Omiam. — The judgment is affirmed, with 1 per cent, damages and costs.
Davison, J., was absent.10 Ind. R. 554.