Evansville & R.R. Co. v. Barnes

• Decision Date: 28 March 1894
• Citation: 36 N.E. 1092,137 Ind. 306
• Court: Indiana Supreme Court
• Parties: EVANSVILLE & R. R. CO. v. BARNES.

137 Ind. 306

36 N.E. 1092

EVANSVILLE & R. R. CO.

v.BARNES.

Supreme Court of Indiana.

March 28, 1894.

Appeal from circuit court, Monroe county; R. W. Miers, Judge.

Action by Stewart Barnes against the Evansville & Richmond Railroad Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

See Railroad Co. v. Henderson (Ind. Sup.) 33 N. E. 1021.

M. F. Dunn, for appellant. C. C. Matson, Jos. Giles, John R. East, and W. C. East, for appellee.

DAILEY, J.

The matter in controversy has been substantially passed upon by this court in the case of this appellant v. Henderson (decided on April 4, 1893) 33 N. E. 1021. The Henderson suit grew out of the same wreck, and the facts upon which the court reversed the judgment of the court below are almost identical with those shown in this case; that is, we have the same conductor, the same engineer, the same cross-ties and derailment. Instead of an inexperienced minor, we have an experienced railroad man and an adult. In lieu of a mere employe, ignorant of the road and but a short time in its employ, as in the former case, we have, in the person of the plaintiff, the superintendent of bridges and an assistant superintendent of construction, who had been with the road during the entire progress of its construction, frequently over it, and thoroughly familiar with its condition; one who inspected the track, including the portion complained of, immediately before the accident, and who made no protest, but permitted the train to be run at a rapid rate of speed when it was within his power, owing to his position, to have prevented it. We have before us a plaintiff superior in authority to all the construction trainmen, who, from his experience, by a mere casual observation, had he looked, could have seen that the ties were not properly loaded, and who made no objection to the manner of loading, and assumed the risk. The appellee's own testimony condemns his right to a recovery. As a witness he says, in substance: “I knew it was a new road in process of construction, only half tied. I knew the condition of the track east of the starting point. * * * I knew it was a new road, and the manner of constructing roads; that it was half tied. I knew the manner of loading cross-ties at the point of the accident. Q. Did you make an inspection of the roadbed and cross-ties at the point of the accident? A. Yes; that became a part of the bridge. I stated that. * * * I inspected the entire track. When you inspect the entire track, you do inspect it all. * * * We carefully inspected, to see that it was all alike at that particular point, and safe to run over. * * * We made a careful inspection of bridges and approaches at the point of the accident. I was over the road twice that morning. * * * The half-tieing system is the ordinary method of constructing a new railroad. * * * I did not notice how the cross-ties were loaded. I never looked.” Felix Polk, who was engaged with the appellant that day, says: “We inspected the bridges and the track that morning.” From the testimony of the appellee as to the condition of the track observed by him and Felix Polk, immediately before the accident, it is evident he knew it was a new track, half tied and not ballasted. In another part of his statement, he says: “It was half tied. It was so all along the line. * * * Track was quite rough. There was water on it at the time. It was sunk down in the mud.” The witness also says he did not look to see whether the ties were braced or not, and that he could have told at a glance. “It is an elementary principle of law governing the relation of master and servant that, when a servant enters upon an employment which is from its nature necessarily hazardous, the servant assumes the usual risks and perils of the service, and this is especially true as to all those risks which require only the exercise of ordinary observation to make them apparent. In such cases, there is an implied contract on the part of the servant to take all the risks fairly incident to the service, and to waive all right of action against the master for injuries resulting from such hazards. This waiver includes, on the part of the servant, all such risks as from the nature of the business, as usually and ordinarily conducted, he must have known when he embarked in the master's service, and also those risks which the exercise of his opportunity for inspection while giving diligent attention to such service would have disclosed to him.” Railroad Co. v. Henderson (Ind. Sup.) 33 N. E. 1021. Where the danger is equally open to the observation of both the master and the servant, they are upon an equality, and the master is not liable as a general rule for the resulting injuries. Railroad Co. v. Henderson (Ind. Sup.) 33 N. E. 1021, on page 1022; Griffin v. Railway Co., 124 Ind. 326, on page 328, 24 N. E. 888. The accident to some extent must be attributed to the speed with which the train was run. This is the appellee's contention also, but the necessity of the speed at which the train was propelled at the time of the injury is not apparent from the evidence adduced on the trial. On the contrary, it is shown that the engineer had orders to run slowly, which he violated. In the case of Railroad Co. v. Henderson (Ind. Sup.) 33 N. E., on page 1023, the court say: “It is difficult to avoid the conclusion that the appellee's injuries are attributable, in some degree at least, to the unnecessary and reckless rate of speed at which the engineer was running the construction train over a half-finished road. Had the train been run at a speed consistent with the dangers incident to the known conditions surrounding the parties in charge of and upon the train, there is no reason to believe that the accident would have occurred in which the appellee was so seriously injured. But the appellee and the engineer operating the engine were fellow servants, and for this reason the appellant is not liable to the appellee for the injury received on account of the negligence of such engineer.” In Railroad Co. v. Arnold, 31 Ind., on page 183, it is said: “It is now settled in this state that the employer is not...