Chicago, I.&L. Ry. Co. v. Pritchard

Citation168 Ind. 398,79 N.E. 508
Decision Date21 December 1906
Docket NumberNo. 20,945.,20,945.
CourtSupreme Court of Indiana
PartiesCHICAGO, I. & L. RY. CO. v. PRITCHARD.

168 Ind. 398
79 N.E. 508

CHICAGO, I. & L. RY. CO.
v.
PRITCHARD.

No. 20,945.

Supreme Court of Indiana.

Dec. 21, 1906.


Appeal from Circuit Court, Clay County; Presley O. Colliver, Judge.

Action by Walter K. Pritchard, administrator, against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court (78 N. E. 1044) under section 13,370, Burns' Ann. St. 1901. Affirmed.


E. C. Field, G. A. Knight, and H. R. Kurrie, for appellant. S. A. Hays, Coffey & McGregor, and C. E. Akers, for appellee.

GILLETT, J.

Action for the negligent killing of appellee's decedent. There was a verdict and judgment for appellee. The testimony showed the following facts: One Bridges was engaged in the shipment, over appellant's railroad, from the town of Cloverdale, of elm poles of various sizes. Pursuant to his request, appellant placed a flat car on its siding, just east of its main track, in said town, for use in making one of said shipments. Decedent was a teamster in the employ of Bridges, being hired by the day, and a short time before the accident he drove up, on the east side of the car, with a load of poles; and, as it was his duty to do, began helping the other men in the work of loading. There were stakes on the west side of the car to keep the poles from rolling off. When the car was about one-half or two-thirds loaded, some one cried: “Flag the train down there!” or “Stop the train!” A passenger train from the south was due, and about that time whistled for the town. When the alarm was given, Bridges and one Akin ran down the track to signal the engineer, while the other men started toward the track to see what was the matter. Decedent and one of his associates went around the north end of the car, and, after passing it, the former took but a step to the south, and, while looking in that direction, the poles on the north end of the car rolled over on him, owing to the fact that some of the pockets which held the stakes gave way. The poles which fell on decedent did not kill him, but they threw him over on the main track, and he was unable to extricate himself, although aided by his companion. A short time afterwards the train came smashing into the poles, instantly killing decedent. Some one, it afterwards turned out, had observed that a part of the load was leaning towards the main track, and this gave rise to the alarm. The giving of it caused much excitement among the men. Bridges ran some 75 feet down the track, but Akin, passing him, succeeded in reaching a point some 40 or 50 feet beyond. As the two

[79 N.E. 509]

proceeded, they waved their hats to signal the engineer. The engineer answered these signals by two short blasts of the whistle. Bridges testified that he could see the train when it was from 1,500 to 2,000 feet away from him, and that the engineer gave the answering signal after the train had run between 600 and 800 feet. There is some confusion in the testimony as to distances, and as to where the train was when the engineer answered the warnings. To a considerable extent the matter is illustrated by photographs in which is shown the situation of objects to which the witnesses made reference. According to the testimony, there was no apparent effort to check the speed. It was up grade for three-quarters of a mile in approaching Cloverdale from the south, and there was a considerable curve in the track immediately south of said town. The locomotive was working steam as it passed the men who had signaled it. The train was composed of three coaches and a baggage car. The poles had been down for some moments when the engineer gave the answering signal. An examination of the flat car, which was subsequently made, disclosed that the pockets gave way because of the absence of nuts on some of the bolts which were used to hold the pockets in place. Bridges had not examined the car, and the defects could only have been perceived by looking from behind the heavy timber through which the bolts passed. No objection is urged to the complaint. The first paragraph seems to be predicated, at least principally, on negligence in the furnishing of a defective car, while the remaining paragraph charges negligence in the failure of the engineer to stop the train after he was signaled.

The principal contention of counsel for appellant is that there was no evidence to support the verdict, and that the court erred in refusing certain instructions tendered by appellant, to the effect that there was no liability on account of the furnishing of a defective car, as there was no contract relation between appellant and decedent. In view of the refusal of said instructions, it is necessary to determine the validity of the theory of defense relative to the defective car. It is, of course, clear that in such a case as this there can be no recovery upon the contract, as decedent was not in privity therewith, and, as respects the common-law duty to exercise care, which may grow out of contractual undertakings, as well as other circumstances (Flint & Walling Mfg. Co. v. Beckett [at this term] 79 N. E. 503), it is also evident that in the sale or letting of property to others, some limitation must be put upon the obligation of the vendor or hirer to respond to third persons in tort, since the duty of inspection rests, at least primarily, upon the person who possesses or controls the property; and, if some limitation were not put on the responsibility of the vendor or lessor, the extent of liability, as was pointed out in Winterbottom v. Wright, 10 M. & W. 109, might be carried to an absurd length. There may, however, in some circumstances be a liability to third persons growing out of the furnishing of dangerous property and it is our task to ascertain whether, in view of the facts relative to the furnishing of the car, the assumption of said instructions was justifiable that the act of appellant in that particular did not constitute a tort as against decedent.

No consideration of the authorities relative to this subject would be at all adequate which did not hark back to Heaven v. Pender, L. R. 11 Q. B. 503. In that case a dock owner furnished, upon a consideration, a tackle for the painting of a ship, which was moored at its own dock. The plaintiff, who was a workman in the employ of a person who had contracted with the shipowner to paint the ship, was injured by reason of the fact that one of the ropes of the tackle was defective. The majority of the court were of the opinion that the dockowner was liable, on the ground that the plaintiff was injured in a work in which the defendant was interested, since it received compensation for permitting the work to be done at its dock, and for furnishing the tackle, and that therefore the plaintiff should be considered as on the premises by invitation. Brett, M. R. (afterwards Lord Esher), was of opinion that the case was one in which a duty should be implied by law, independently of contract. He declared that “whenever one person supplies goods or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there would be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing. And for a neglect of such ordinary care or skill whereby injury happens, a legal liability arises to be enforced by an action for negligence. This includes the case of goods, etc., supplied to be used immediately by a particular person or persons or one of a class of persons, where it would be obvious to the person supplying, if he thought that the goods were in all probability to be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied and who was about to use it.”

In Elliott v. Hall, L. R. 15 Q. B. D. 315, it was held that a colliery owner, who shipped coal by rail, in a car leased by him, to a firm, was liable to a servant of the latter, who was

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