Indianapolis & Greenfield Rapid Transit Co. v. Foreman

• Citation: 69 N.E. 669,162 Ind. 85
• Decision Date: 29 January 1904
• Docket Number: 20,253
• Court: Supreme Court of Indiana
• Parties: Indianapolis & Greenfield Rapid Transit Company v. Foreman

69 N.E. 669

162 Ind. 85

Indianapolis & Greenfield Rapid Transit Company v. Foreman

No. 20,253

Supreme Court of Indiana

January 29, 1904

From Henry Circuit Court; W. O. Barnard, Judge.

Action by Marion S. Foreman against the Indianapolis &amp Greenfield Rapid Transit Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Reversed.

W. A Brown, J. P. Walker and E. J. Binford, for appellant.

M. E Forkner, G. D. Forkner, E. T. Glasscock, Ephraim Marsh and W. W. Cook, for appellee.

OPINION

Monks, J.

Appellee brought this action against appellant and the Kirkpatrick Construction Company, a corporation, to recover for a personal injury alleged to have been caused by the negligence of said corporations. The defendants jointly filed a demurrer to each paragraph of the amended complaint, and each defendant filed a separate demurrer to each paragraph of the complaint. These demurrers, which challenged each paragraph of the complaint for want of facts, were overruled by the court, to which ruling the defendants "jointly and separately excepted." A trial of said cause resulted in a general verdict against appellee as to the Kirkpatrick Company and in favor of appellee against appellant. Appellant filed a motion for a new trial, which was overruled, and judgment was rendered on the verdict in favor of appellee.

The errors assigned call in question the action of the court in overruling (1) the joint demurrer of appellant and said construction company to the amended complaint, (2) the separate demurrer of appellant to each paragraph of the amended complaint, and (3) appellant's motion for a new trial. The amended complaint is also challenged by an assignment that the same "does not state facts sufficient to constitute a cause of action."

Appellee insists that appellant's assignment of errors predicated upon the exception taken by appellant to the rulings on the demurrers to each paragraph of the complaint presents no question as to the sufficiency of the paragraphs thereof, citing City of South Bend v. Turner, 156 Ind. 418, 421, 54 L. R. A. 396, 83 Am. St. 200, 60 N.E. 271. It will be observed that in the case cited the exception was joint, while in this case the defendants "jointly and separately excepted." It is clear, therefore, that the case cited is not in point here.

The first paragraph of the amended complaint proceeds upon a common law liability. Appellant was, on May 27, 1901, "a corporation owning and operating an interurban street railway extending from Irvington to Greenfield, in this State, and was a common carrier of passengers for hire. On said day appellee was an employe of appellant as a common laborer, and was engaged with divers others in constructing a spur from appellant's track to Spring Lake, a distance of three-fourths of a mile. Appellant had in use on said day a car known as a work-car, which had been and was used in carrying its employes to divers points along said road where they were engaged and employed by appellant in building, maintaining, and repairing its said line of road. After said day's work had been finished, at about 6:30 p. m., appellee, with divers other employes of appellant, entered said work-car on said spur for the purpose of being carried to Greenfield, where he resided. While he was in said car, and the same was standing on a switch of appellant's road, one of appellant's passengercars in charge of its employes approached said switch from the west at a high and dangerous rate of speed, to wit, thirty miles per hour, and ran into and upon said switch and collided with said work-car and injured appellee." In addition to the averments in the first paragraph of the amended complaint showing the above facts, there are other allegations showing that the collision and consequent injury of appellee were caused by the negligence and carelessness of appellant's employes in charge of said passenger-car in not obeying the rules of appellant.

It is also alleged in said first paragraph that "the work in which appellee was engaged was common labor upon the tracks of appellant, and had no connection with, nor was the same in any manner incident to or a part of the work or employment of said motorman or servants in charge of the passenger-car; nor were the squad of laborers with whom said appellee was working as aforesaid, and who were with him in said work-car, in any manner connected or associated with the said servants of appellant in charge of said work-car or said passenger-car which collided with it; that appellee had no charge of said work-car or the operation thereof, but was simply a passenger thereon at the time of the accident." Appellee says that this "paragraph of the complaint proceeds upon a common law liability," and that the same is sufficient, because it is alleged that his injury was occasioned by the negligence of other servants of the company, whose duties were not common nor in the same department with those of the appellee, citing Fitzpatrick v. New Albany, etc., R. Co., 7 Ind. 436.

It was held in the case cited and in Gillenwater v. Madison, etc., R. Co., 5 Ind. 339, 61 Am. Dec. 101, that a railroad company is liable to an employe for an injury occasioned by the negligence of other employes of the company where the duties of the latter, in connection with which the injury happens, are not common or in the same department with those of the injured servant. Those cases, however, were overruled on this point in Columbus, etc., R. Co. v. Arnold, 31 Ind. 174, 183, 99 Am. Dec. 615, where it was said concerning said rule: "But this limitation of the exemption of the company from liability in such cases is not recognized in any of the subsequent cases; and it is now settled in this State, that the employer is not liable for an injury to one employe, occasioned by the negligence of another engaged in the same general undertaking. Ohio, etc., R. Co. v. Tindall, 13 Ind. 366; Wilson v. Madison, etc., R. Co., 18 Ind. 226; Slattery v. Toledo, etc., R. Co., 23 Ind. 81; Ohio, etc., R. Co. v. Hammersley, 28 Ind. 371. In Slattery v. Toledo, etc., R. Co., supra, Worden, J., quotes, with approbation, from the decision in Wright v. New York Cent. R. Co., 25 N.Y. 562, as follows: 'Neither is it necessary, in order to bring a case within the general rule of exemption, that the servants, the one that suffers and the one that caused the injury, should be at the time engaged in the same operation or particular work. It is enough that they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties and services tending to accomplish the same general purposes, as in maintaining and operating a railroad, operating a factory, working a mine, or erecting a building. The question is whether they are under the same general control.' To the same effect is the case of Manville v. Cleveland, etc., R. Co., 11 Ohio St. 417, where it is said, that 'those employed in facilitating the running of the trains, by ballasting the track, removing obstructions, and those employed at stations, attending to switches, and other duties of a like nature upon the road, as well as those upon the trains, operating, may all be well regarded as fellow servants in the common service.'"

In Gormley v. Ohio, etc., R. Co., 72 Ind. 31, a laborer, whose duty was to assist in repairing the track, etc., while being carried to his work on a hand-car, was killed by a collision with a freight-train. His death was occasioned by the negligence of the engineer in charge of the engine and said train. The court's attention was called to the cases of Gillenwater v. Madison, etc., R. Co., supra, and Fitzpatrick v. New Albany, etc., R. Co., supra, and on page 33 it was said: "The cases cited by counsel were not overlooked, but were referred to and explained or disapproved in the later cases. Slattery v. Toledo, etc., R. Co., 23 Ind. 81; Columbus, etc., R. Co. v. Arnold, 31 Ind. 174; Wilson v. Madison, etc., R. Co., 18 Ind. 226; Pittsburgh, etc., R. Co. v. Ruby, 38 Ind. 294; Sullivan v. Toledo, etc., R. Co., 58 Ind. 26. These later cases are certainly not consistent with the ground on which it is sought to have a right of recovery in the appellant. If a hardship results from the application of the rule that an employer is not liable to one employe for an injury caused by another employe engaged in the same general undertaking, it is more fitting that the legislature be invoked to give a remedy, than that this court should undertake to introduce doubtful exceptions to a rule so clearly established." In Evansville, etc., R. Co. v. Barnes, 137 Ind. 306, 310, 36 N.E. 1092, the rule as stated in Columbus, etc., R. Co. v. Arnold, supra, is quoted with approval. The following cases are to the same effect: Thacker v. Chicago, etc., R. Co., 159 Ind. 82, 85, 59 L. R. A. 792, 64 N.E. 605, and cases cited; Thompson v. Citizens St. R. Co., 152 Ind. 461, 469, 53 N.E. 462, and cases cited; Justice v. Pennsylvania Co., 130 Ind. 321, 30 N.E. 303; Spencer v. Ohio, etc., R. Co., 130 Ind. 181, 184, 29 N.E. 915, and cases cited; Clarke v. Pennsylvania Co., 132 Ind. 199, 17 L. R. A. 811, 31 N.E. 808, and cases cited; Capper v. Louisville, etc., R. Co., 103 Ind. 305, 2 N.E. 749; Indiana, etc., R. Co. v. Dailey, 110 Ind. 75, 79, 80, 10 N.E. 631, and cases cited; Sullivan v. Toledo, etc., R. Co., supra; Woollen, Trial Proc., §§ 1350, 1351; Beach, Contrib. Neg., § 331. It is clear under the cases cited that appellee, an employe of appellant, engaged in common labor upon its track, was a fellow servant with those in charge of the passenger-car.

It is a general rule in this State that employes, while being transported to and from their work on the...