Baltimore, O.&C.R. Co. v. Rowan

• Citation: 3 N.E. 627,104 Ind. 88
• Parties: Baltimore, O. & C. R. Co. v. Rowan.
• Decision Date: 24 November 1885
• Court: Supreme Court of Indiana

104 Ind. 88

3 N.E. 627

Baltimore, O. & C. R. Co.

v.Rowan.

Supreme Court of Indiana.

Filed November 24, 1885.

Appeal from La Grange circuit court.

H. Newbegin and J. H. Baker, for appellant.

J. D. Ferrall, R. P. Barr, and H. G. Zimmerman, for appellee.

HOWK, J.

The first errors of which complaint is made here on behalf of the appellant, the defendant below, are those which call in question the sufficiency of the facts stated in appellee's complaint to constitute a cause of action. This suit was commenced in the Noble circuit court, in this state, but afterwards, and before trial and judgment, the venue of the cause was changed to the court below.

In his complaint the appellee alleged that appellant was a corporation, under the laws of this state, and as such owned a line of railroad running into and through Noble county, in this state, and was and had been, prior to and at the time of the grievances and injury complained of, the owner of locomotive engines and trains of cars, used and employed by appellant, before and at the time mentioned, in the transportation of freight and carriage of passengers, on its line of railroad, into and through such county; that prior to the time of appellee's injuries, hereinafter mentioned, appellant had constructed a bridge over and across its road in such county, at a place where it was crossed by a public highway, about one and one-half miles east of its depot, in the town of Albion; that by the appellant's negligence in keeping its railroad in repair and safe condition, at the place where such bridge was constructed, and in constructing such bridge and keeping it in safe condition for the passage of its trains, such bridge was not constructed of sufficient height above appellant's railroad to permit the brakemen on its freight trains to stand at the brakes at their proper and necessary places on top of freight cars, and perform their necessary duties, while such trains were moving on and along its railroad, through and under such bridge, without great danger to the persons and lives of its brakemen on such freight trains.

And the appellee further alleged that, at and prior to the commission of the injuries thereinafter mentioned, appellant and its agents and servants well knew, and by the exercise of reasonable diligence might have known, of the improper construction and insufficient height of the bridge aforesaid; and that it was dangerous for brakemen to stand on the top of freight cars of the kind known as “refrigerator cars,” while appellant's freight trains drawing such refrigerator cars were passing on its railroad, through and under such bridge, on account of insufficient height of such bridge, and the want of sufficient space between the top of such refrigerator cars and the overhead timbers of the bridge, while passing thereunder; that appellant further knew that the proper and necessary place for a brakeman on such freight cars and trains as the one on which appellee stood and was employed by appellant, at the time and place and in the manner thereinafter stated, and was, while in the performance of his duties as such brakeman, on the top thereof; and that appellant well knew that it was highly dangerous for a brakeman to perform the duties required of him and remain on the top of such refrigerator cars while its train of such cars was passing through or under such bridge.

And the appellee averred that on the twenty-ninth day of June, 1878, he being then in appellant's employ as a brakeman, on one of its freight trains on its railroad, in such county, for a certain hire to be paid him by appellant for his services as such brakeman, the appellant did, on the day named, at Garrett, in such state, order and direct appellee to take his proper place on top of one of appellant's freight cars of one of its freight trains, then running between such town of Garrett, through Noble county, to the city of Chicago, on appellant's railroad; that such freight train was composed in part of certain freight cars known as “refrigerator cars,” which were placed in the section of such train upon which, by appellant's rules, it became the duty of appellee to take his place as such brakeman, and upon the top thereof, to do and perform the labor and services required of him as such brakeman; that the appellee, being then and there ignorant of the improper construction of the bridge over appellant's railroad, at the place aforesaid, in Noble county, and being ignorant of the negligent maintenance and repair of such bridge by appellant's servants and agents, and being wholly ignorant of the insufficient height of such bridge over such railroad, all of which facts were well known at the time to appellant and its servants and agents, he, the appellee, then and there, at the time and place aforesaid, took his proper place at the brake on top of one of the refrigerator cars, on appellant's train of freight cars, then and there running west through Noble county and under such bridge; that on the day last named while appellee was in appellant's employ as such brakeman, and in the discharge of his duties on such freight train, and while such train was running through Noble county, and under such bridge, and while he was at his proper place and post of duty on such cars in the discharge of his duties, and while such train was under the charge of one of appellant's servants as conductor, and without any fault or negligence of the appellee, he, the appellee, was struck with great force and violence by one of the overhead timbers of such bridge upon his head, whereby he was badly bruised and wounded in his head and rendered apparently lifeless for a long time, and whereby his skull was fractured and his nervous system greatly injured, and, by reason of such wounds and bruises, he was for a long time, to-wit, five weeks, rendered sick and was disabled from work, and during all such time suffered great bodily pain and distress of mind, and was compelled to expend, to-wit, $500, for nursing and medical attendance, etc., to his damage $10,000. Wherefore, etc.

It is earnestly insisted by appellant's learned counsel that appellee's complaint does not state sufficient facts to constitute a cause of action, or to show that appellant is liable to him for the injuries he received while in its service and in the proper discharge of the duties of his employment. After criticising the complaint at some length appellant's counsel say:

“In short, setting aside a jugglery of words respecting negligence, the allegations of the complaint would fix the fellow-servants of the appellee with negligence, such as would avoid liability on the part of the appellant; because the accident, on these allegations, may well have been held to have been caused by the negligence of fellow-servants, and hence he should not recover. We repeat, there is nothing showing anything more than a sheer assumption of risk on the part of the appellee, which risk was not latent, and, plain to be seen, not increased.”

It must be confessed that the position of appellant's counsel, in regard to the non-liability of the railroad company to its employe, in such a case as the one at bar, seems to be sustained by the decisions of the court of last resort, in several of our sister states. We cite some of these cases, as follows: Baylor v. Delaware, etc., R. Co., 40 N. J. Law, 23; Baltimore, etc., R. Co. v. Stricker, 51 Md. 47;Devitt v. Pacific R. R., 50 Mo. 302;Pittsburgh, etc., R. Co. v. Sentmeyer, 92 Pa. St. 276; Clark's Adm'r v. Richmond, etc., R. Co., 78 Va. 709;Gibson v. Erie Ry. Co., 63 N. Y. 449.

In this connection we may properly note that in Beach on Contributory Negligence, § 134, in speaking of these decisions it is vigorously said:

“If the roof or overstructure of the bridge is so low that it will strike a brakeman standing erect upon the top of his train, it is an essentially murderous contrivance, and it is not creditable to our jurisprudence that such buildings are not declared a nuisance. There is nothing in the reports worse than the cases that sustain railroad corporations in building and maintaining these man-traps.”

The case in hand is one of first impression in this state, and we are not concluded by any previous decision of this court. We are impressed with the opinion that appellant's counsel misapprehend the force and effect of the facts stated in appellee's complaint, and admitted to be true, as the question of their sufficiency is now presented. Stripped of the “jugglery” of adjectives or qualifying words, the material facts admitted to be true were (1) the construction and maintenance by appellant of the highway bridge over its railroad track of an insufficient height to enable its brakemen to perform their labors and...