14 N.E. 721 (Ind. 1887), 12,232, Indianapolis And St. Louis Railway Company v. Watson

Docket Nº:12,232
Citation:14 N.E. 721, 114 Ind. 20
Opinion Judge:Elliott, J.
Party Name:The Indianapolis and St. Louis Railway Company v. Watson
Attorney:J. T. Dye, for appellant. S. M. Shepard, J. B. Elam and C. Martindale, for appellee.
Case Date:December 27, 1887
Court:Supreme Court of Indiana

Page 721

14 N.E. 721 (Ind. 1887)

114 Ind. 20

The Indianapolis and St. Louis Railway Company



No. 12,232

Supreme Court of Indiana

December 27, 1887

Reported at: 114 Ind. 20 at 35.

From the Marion Superior Court.

Judgment reversed.

J. T. Dye, for appellant.

S. M. Shepard, J. B. Elam and C. Martindale, for appellee.


Page 722

Elliott, J.

Stated in a condensed form, the material allegations of the complaint are these: The appellant maintained a freight yard near the city of Indianapolis, in which there were many tracks and switches used for handling locomotives [114 Ind. 21] and cars. On the 15th day of October, 1882, the appellee was in the service of the appellant as a night watchman. His duties as such watchman were to go about and over the yard at all hours of the night, and look after the property of his employer, and to wake up at the proper times its employees. The appellant knew that it was necessary that the watchman should be provided with a light in order that he might properly discharge his duties and at the same time protect himself from danger, yet the appellant refused to provide a light. A day or two after the appellee had been so employed he notified his employer that it was necessary for him to have a light in order to discharge his duties and to protect himself. His employer promised to procure a light for him in a short time, and requested him to continue in the performance of his duties. Relying on this promise, he did continue in the appellant's service, but the light was not provided as promised. On the night of November 1st, 1882, he was injured, without any fault on his part, while in the discharge of his duties, and his injury was caused by the wrong and negligence of the appellant in failing to provide him with a lantern.

The fourth instruction given by the court reads thus: "The general rule is, that when a servant, before he enters the service, knows it to be hazardous, or voluntarily continues his service, without objection or complaint, when he has such knowledge, he is presumed to contract with reference to the state of things as they are known to him, and if he knows that the continuance of such service exposes him to constant and certain danger, the servant in such cases takes the risks upon himself, and in case he suffers injury thereby, he waives all claims for damages against his master for such injury. As has been said in argument, the master is not required to take better care of his servant than he takes of himself."

Appellant's counsel dissects this instruction, and, seizing on the words "without objection or complaint," assails it as erroneous.

[114 Ind. 22] This course can not be successfully pursued. The instruction must be taken in connection with the others of the series, and can not be considered as standing alone. An instruction is not to be judged by taking mere fragments dislocated from their proper connections, nor is one instruction to be taken as complete in itself. This instruction must, as is well settled, be taken as an entirety, and in connection with the others referring to the same subject and immediately connected with it. City of Indianapolis v. Gaston, 58 Ind. 224; Deig v. Morehead, 110 Ind. 451, 11 N.E. 458.

We must, therefore, take the fourth instruction in connection with that bearing upon the same subject, which is as follows:

"6. To the general rule I have announced in relation to a servant who, with a knowledge of the dangers of the service, continues in it, there is at least this exception, that if a servant knows that his service is dangerous, and that he has not been provided with proper means or implements for the reasonably safe performance of the duties of his employment, and makes complaint to his master, who promises that suitable and proper implements shall be provided him to render his service less dangerous, then such servant may continue in the service a reasonable time, and may recover for an injury sustained by him within such time, if, on account of the master's negligence in failing to supply the means of avoiding danger, the injury results; provided such servant at the time of the injury was not guilty of any negligence which contributed to produce the injury. His care must be also proportioned to the danger; when the one is

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increased, the other must be also. Yet all that is required is ordinary care under the circumstances of the case. And you must determine from the evidence in the case what would be a reasonable time within which he might continue in the master's service under said promise, if any was made, and, also, what would be ordinary care--that is, such care as an ordinarily prudent and cautious person would exercise under the circumstances [114 Ind. 23] of the case. The want of such care is what the law terms negligence."

If these instructions, taken together, express the law, then the appellant has no just cause of complaint, even though the isolated clause which counsel detaches and assails should in itself be regarded as an inaccurate statement of the law. Our conclusion is, that when the instructions are so taken they express the law as favorably to the appellant as it had a right to ask.

The first of these instructions does not assert that those employees who continue in the master's service, "without objection or complaint," do not assume the usual risks of the service. It simply asserts that all who do continue "without objection or complaint" do assume the risks incident to the service; but it by no means asserts that those who do complain and object do not also assume those risks. Possibly, the instruction standing alone may be incomplete, but it can not be justly said to be erroneous, since it may be true that all who continue in a service without objection do assume the risks as well as those who do make objections. But, however this may be, it is sufficiently evident that the fourth instruction is made complete by the sixth, and there is, therefore, no available error.

The next step takes us into a field of stubborn conflict. There are authorities holding that, where the employee objects to the safety of the appliances furnished him, the employer is liable if the employee is injured while in the employer's service, and within a reasonable time after urging the objection. Union Manfg. Co. v. Morrissey, 22 Am. L. Reg. 574; Thorpe v. Mo. Pacific R. W. Co., 89 Mo. 650 (58 Am. R. 120, 2 S.W. 3); 2 Thompson Negligence, 1009.

A careful examination of the other authorities relied on by appellee's counsel has satisfied us that they do not decide all that it is asserted that they do.

In Holmes v. Clarke, 6 Hurl. & N. 349, the master neglected to fence a dangerous place, as an act of Parliament required [114 Ind. 24] him to do, and a servant was awarded a recovery for injuries caused by this negligence. Leaving out of...

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