Pennsylvania Co. v. Congdon

• Decision Date: 16 March 1893
• Citation: 134 Ind. 226,33 N.E. 795
• Parties: PENNSYLVANIA CO. v. CONGDON.
• Court: Indiana Supreme Court

134 Ind. 226

33 N.E. 795

PENNSYLVANIA CO.

v.CONGDON.

Supreme Court of Indiana.

March 16, 1893.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Action by Horton E. Congdon, by next friend, against the Pennsylvania Company, for personal injuries sustained by plaintiff while in defendant's employ. From a judgment in plaintiff's favor, defendant appeals. Reversed.

J. Brackenridge, for appellant. L. M. Ninde, for appellee.

HOWARD, J.

This was an action for damages, brought by appellee against appellant, resulting in a verdict and judgment for appellee. The complaint is assailed for the first time in this court. The pertinent averments are the following: “In June, 1888, when this plaintiff was an infant, eighteen years of age, said defendant employed him as an extra brakeman upon its train of freight cars running upon said road, and on September 16, 1888, plaintiff was still continuing in said service for said defendant; and plaintiff was young and inexperienced in said business, and unable to appreciate and understand all the dangers and hazards of said business, in which he was so engaged, which was well known to said defendant on said 16th of September, 1888. That on said 16th of September, 1888, said defendant required plaintiff to go upon a train of freight cars on its said line of railroad from Ft. Wayne to Chicago, and required plaintiff, upon said trip, * * * to act as front brakeman on said train. That plaintiff, as requested and directed by defendant, did go upon said freight train, * * * and while the same was running from Ft. Wayne to Wanatah * * * did act as front brakeman. That when said train arrived at Wanatah, and long before it arrived there, and long after it departed therefrom, it was nighttime and dark, and plaintiff was unable to perform his duties without the aid of a lantern to light his way; and plaintiff was for some time before the receipt of the injury, as hereinafter set forth, using a lantern provided for his use by said defendant, in lighting his way in discharging his said duties. That his duty as such brakeman required him to use said lantern in making signals to other train men upon said train. That said train was equipped with air brakes, by the use of which the engineer of said train could stop the same suddenly, and would so stop the same upon proper signal being given. That the lantern so furnished by defendant for plaintiff's use, and which he was then using, was defective, and not properly guarded from the wind, and would go out when properly used in making proper signals, which was unknown to plaintiff. That shortly after said train started west from Wanatah, and while plaintiff was upon said train, and on the top of car thereof, in the proper discharge of his duty, he waved a signal with his said lantern, and the light in the same, by reason of its defective condition, went out; and plaintiff, not being able to light the same where he was, and being ignorant of the proper thing to do under the circumstances, and having received no instructions from said defendant as to the course he should pursue under such circumstances, and being unable to discharge his duties without such light, started to go to the engine of said train, to relight said lantern. That as he reached the front end of said car, next to said engine, the engineer thereof, without warning or signal, put on the air brakes upon said train and engine, suddenly slowing said train, whereby plaintiff was thrown for ward and between said car and tender of said engine, and down upon the track of said railroad, and the wheels of said train passed over said plaintiff's arm, and crushed, bruised, and maimed the same so that his said arm was necessarily amputated at the shoulder joint; and he suffered great mental and physical anguish and pain, and was permanently injured, and was compelled to expend large sums of money in medical attendance, nursing, and medicine, and was damaged in the sum of fifteen thousand dollars. That said injury was received, and said damages sustained, without any negligence whatsoever on the part of plaintiff. That defendant, well knowing the plaintiff's youth and inexperience, and inability to comprehend the dangers of his said employment, or to know what course to pursue under the circumstances which resulted in said accident, so negligently put plaintiff in said position, place, and business without any instructions given him as to what he should do under such circumstances, and without any caution or warning as to the dangers attendant upon such service, or the use of such air brakes, and so negligently gave him such defective locomotive [lantern?] for use as aforesaid, by reason of which negligence said injuries were received, and said damages sustained, wherefore,” etc.

This complaint was not challenged in the circuit court; so that all minor defects, if any, must be held to be cured by the verdict. The complaint will stand, unless there is some fault in it which affects in a very material degree the cause of action. Elliott, App. Proc. § 473, and cases cited in notes; Busk. Pr., and cases cited. In McGregor v. Hubbs, 125 Ind. 487, 25 N. E. Rep. 591, it is said that “an assignment of error, that the complaint does not state facts sufficient to constitute a cause of action is not available for the reversal of the judgment unless some fact essential to the existence of a cause of action has been wholly omitted from the complaint.” To enable an employe to recover damages from his employer on account of injuries received by reason of defective places, machinery, or appliances, or incompetent coemployes, furnished by the employer for the use or assistance of the employe, it is necessary, in general, to allege and prove that the employer was in fault, and that the employe was without fault, or at least, to allege and prove facts from which such fault and want of fault may be inferred. In this case it is, therefore, essential that the averments of the complaint should show that any defects alleged to exist in the management of appellant's train, or in the character or quality of the appliances used in connection with the running of the train, from which the accident resulted, were due to the negligence or carelessness of appellant, and that appellee was himself free from such negligence or carelessness.

It may be necessary to say something of the real cause of the accident, as disclosed in the complaint, and to distinguish the cause of the accident from the incident or occasion connected with it. Webster defines an “occasion,” as distinguished from a “cause,” to be “that which incidentally brings to pass an event, without being its efficient cause or sufficient reason.” While the cause to be considered must be the proximate, and not the remote, cause, yet “the question is not what cause was nearest in time or place to the catastrophe.” In Insurance Co. v. Boon, 95 U. S. 130, the proximate cause is defined to be “the efficient cause,-the one that necessarily sets the other causes in operation. The causes that are merely incidental, or instruments of a superior or controlling agency, are not the proximate causes and the responsible ones, though they may be nearer in time to the result.” And the court continues: “If two causes conspire, and one must be chosen, the more scientific inquiry seems to be whether one is not the efficient cause, and the other merely instrumental or merely incidental, and not which is nearer in place or time to the consummation of the catastrophe. * * * In Gordon v. Rimmington, 1 Camp. 123, (cited in Phil. Ins. § 1097,) it was held that when the captain of a ship insured against fire burned her, to prevent her falling into the hands of the enemy, it was a loss by fire, within the meaning of the policy. It was because the fire was caused by the public enemy. The act of the captain was the nearest cause in time, but the danger of capture by the public enemy was regarded as the dominating cause. * * * In Lund v. Tyngsboro, 11 Cush. 563, where it appeared that a traveler had been injured by leaping from his carriage, exercising ordinary care and prudence, in consequence of a near approach to a defect in a highway, the town was held liable, though the carriage did not come to the defect. The defect was regarded as the actual, the dominating, cause. * * * In Insurance Co. v. Tweed, 7 Wall. 44, it was, in effect, ruled that the efficient cause, the one that set others in motion, is the cause to which the loss is to be attributed, though the other causes may follow it, and operate more immediately in producing the disaster.” So it has been frequently held that a railroad company is liable for injury to land...