Baltimore and Ohio Southwestern Railroad Co. v. Carroll
| Decision Date | 02 October 1928 |
| Docket Number | 25,346 |
| Citation | 163 N.E. 99,200 Ind. 589 |
| Parties | Baltimore and Ohio Southwestern Railroad Company v. Carroll, Administratrix |
| Court | Indiana Supreme Court |
Rehearing Denied March 15, 1929.
1. MASTER AND SERVANT---Federal Employers' Liability Law---Recovery for Death of Employee---Limited to One Action.---The effect of 36 Statute at Large 291, ch. 143, 9 (45 USCA 59), providing that an injured person's right of action shall survive to his personal representative for the benefit of his widow, children, etc., is to permit and require all damages, both to decedent by reason of the injury and to his beneficiaries by reason of his death, to be recovered in one action. p. 596.
2. LIMITATION OF ACTIONS---Additional or Amended Paragraphs of Complaint---Effect of.---Where additional or amended paragraphs of complaint are filed after the lapse of the statutory limitation, but which are founded upon the same transaction as that sued on in the original complaint, and which merely expand or amplify what has already been alleged they relate back to the commencement of the action, at which time the statute of limitations was arrested, and they are not affected by the intervening lapse of time. p. 596.
3. LIMITATION OF ACTIONS---Amendment of Complaint---Not Changing Cause of Action.---An amended complaint against a railroad company for personal injuries received while the injured party was assisting in unloading a heavy article from a freight train, though filed after the lapse of the period of limitation for the commencement of the action, was not barred, where the amendment merely alleged that, at the time of the accident, the parties were engaged in interstate commerce, as it did not introduce a new or different cause of action. p. 596.
4. MASTER AND SERVANT---Federal Employers' Liability Law---Abrogates Fellow-Servant Rule.---The federal Employers' Liability Law abrogates the common-law rule under which the negligence of a fellow servant is a bar to recovery, its effect being to make the negligence of a fellow servant the negligence of the employer. p. 600.
5. NEGLIGENCE---Contributory Negligence---Federal Employers' Liability Law.---The federal Employers' Liability Law (45 USCA 51--59) eliminates contributory negligence as a bar to recovery for injury to an employee of an interstate carrier by providing that the damages shall be diminished in proportion to the amount of negligence proximately attributable to the injured employee, and eliminates the defense entirely in cases where the violation of the statutes enacted for the safety of employees proximately contributed to the injury or death of an employee. p. 600.
6. MASTER AND SERVANT---Assumption of Risk---Federal Employers' Liability Law.---The federal Employers' Liability Law (45 USCA 51--59) does not change the rule that an employee shall be held to have assumed the risk of the employment except where there is a violation by an interstate carrier of a federal statute enacted for the safety of employees which proximately contributed to the injury or death of such employee. p. 600.
7. MASTER AND SERVANT---Assumption of Risk---Risks Assumed.---The risks of his employment that an employee assumes are the ordinary, usual, obvious and unavoidable dangers and perils naturally incident thereto, so far as these are not attributable to the employer's negligence p. 601.
8. MASTER AND SERVANT---Assumption of Risk---Based on Knowledge and Appreciation of Danger.---The defense of assumption of the risks of the employment by an injured employee like that of con- tributory negligence is based on the knowledge and appreciation by the servant of the danger causing the accident and knowledge is presumed as regards usual and ordinary risks. p. 601.
9. MASTER AND SERVANT---Assumption of Risk---From Employer's Negligence---Continuing in Employment.---Any risk of employment resulting from the negligence of an employer is assumed by an employee when, with knowledge of such negligence and appreciation of the danger resulting therefrom, he continues his employment without objection, and is thereafter injured by reason of such negligence. p. 601.
10. MASTER AND SERVANT---Assumption of Risk---From Employer's Negligence---Knowledge and Appreciation Presumed.---Knowledge of the negligent conduct of his employer and the resulting danger will be imputed to an employee when such conduct and danger are so patent, open, obvious or apparent that an ordinarily-careful person, under the circumstances, would observe and appreciate them. p. 601.
11. MASTER AND SERVANT---Assumption of Risk---Co-employee's Negligence---Federal Employers' Liability Law.---In saving the defense of assumption of risk, the federal Employers' Liability Law (45 USCA 51--59) places a co-employee's negligence resulting in injury to a fellow-servant in the same relation as the employer's own negligence would stand in determining whether the injured employee assumed the risk resulting from such negligence. p. 601.
12. MASTER AND SERVANT---Defense of Assumed Risk---When not Applicable.---When an injury to an employee arises from a single act of negligence creating a sudden emergency without warning to the servant or opportunity to judge of the resulting danger, the defense of assumed risk is not applicable. p. 601.
13. MASTER AND SERVANT---Assumption of Risk---Defects in Appliances.---An employee does not assume the risk of a defect in an appliance furnished to him by his employer unless he knows of the defect and knows it endangers his safety, and he is not required to search for defects or to critically inspect the appliances furnished him. p. 602.
14. MASTER AND SERVANT---Assumption of Risk---When Question for Jury.---Where a railroad employee was injured while helping to unload a heavy article from a car, the accident resulting from the breaking of one of a number of planks used as skids on which to slide the article from the car to the ground, the defect which caused the plank to break being a knot which could not have been discovered by the naked eye, it could not be said as a matter of law that the danger was so obvious that the plaintiff must have known of it, or so remote that defendant could not be charged with knowledge of it and the question of the employee's assumption of the risk was for the jury. p. 603.
15. MASTER AND SERVANT---Assumption of Risk---From Defective Appliances---Question for Jury.---In this state, in an action for damages for the death of an employee, resulting from the alleged negligence of his employer, the question whether the deceased employee assumed the risk of being injured by a defective appliance, in view of all the circumstances of the case, is a question for the jury under proper instructions. p. 603.
16. MASTER AND SERVANT---Assumption of Risk---Defective Appliance---Employee's Knowledge of Peril---Question for Jury.---In an action involving the question of an injured employee's assumption of the risk incident to the use of a defective appliance, the questions whether the defect therein or the danger therefrom was obvious, or whether the employee had knowledge of his peril, or, in the exercise of due care, would have had knowledge thereof, are for the jury. p. 603.
17. MASTER AND SERVANT---Assumption of Risk---When no Question for Jury.---It is only where the uncontroverted evidence discloses the fact that the danger to an employee would have been apparent to an ordinarily-prudent person, and that the services were thereafter rendered without complaint, that the defense of assumption of the risk is conclusively established so there can be no question for the jury. p. 603.
From Jennings Circuit Court; John R. Carney, Judge.
Action by Lula A. Carroll as administratrix of the estate of Guerney O. Burtch against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for the plaintiff, the defendant appeals.
Affirmed.
McMullen & McMullen, M. R. Waite, W. A. Eggers and Joseph Verbarg, for appellant.
Montgomery & Montgomery and Harry C. Meloy, for appellee.
This action was brought on February 20, 1918, in the Jackson Circuit Court by Guerney O. Burtch against the railroad company to recover damages for personal injuries suffered by him on October 24, 1917, as a result of the company's negligence, while he was engaged in assisting to unload a heavy ensilage cutter from a freight train at Commiskey, Indiana.
From a verdict and judgment rendered May 28, 1918, in Burtch's favor in the sum of $ 8,000, the railroad company appealed to this court, where the judgment was affirmed March 14, 1922. Baltimore, etc., R. Co. v. Burtch (1922), 192 Ind. 199, 134 N.E. 858.
Burtch, who was injured because of the breaking of a defective skid, was caught and crushed by the falling ensilage cutter. Three ribs were broken, and paralysis resulted from an injury at the lower part of the dorsal vertebrae. He had no control of his legs, bladder, bowels, and other organs and parts of his body below the waist, was able to sleep only by the aid of hypodermic injections, could do no labor, and required the attention of a nurse. He died from these injuries February 10, 1921, and appellee, his widow, was appointed administratrix of his estate, and was substituted as a party in the proceedings that have followed. (Appellee's name was changed to Carroll by her marriage about three years after Burtch's death.)
On application of the railroad company, the Supreme Court of the United States, by certiorari to this court, reversed the judgment, January 7, 1924, B. & O. S.W. R. Co. v Burtch (1924), 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433, holding: (1) That uncontradicted evidence established the character of the shipment of the...
To continue reading
Request your trial