Baltimore & O.&C.R. Co. v. Paul.

Citation40 N.E. 519, 143 Ind. 23
Case DateApril 23, 1895
CourtSupreme Court of Indiana

143 Ind. 23
40 N.E. 519

BALTIMORE & O. & C. R. CO.
v.
PAUL.
1

Supreme Court of Indiana.

April 23, 1895.


Appeal from circuit court, Steuben county; Doak R. Best, Special Judge.

Action by Frank S. Paul against the Baltimore & Ohio & Chicago Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.


J. H. Collins, for appellant. W. L. Penfield and R. W. McBride, for appellee.

HACKNEY, J.

The distinct theory of the appellee's complaint was that the appellant was the owner and operator of a line of railway, in the operation of which it employed him as a brakeman; that in the course of his said service the appellant negligently supplied to him certain defective appliances, and negligently employed a reckless and incompetent engineer; that by reason of such negligence of the appellant the appellee sustained injuries, for which he sought damages. A jury returned a general verdict in favor of the appellee, and answered certain interrogatories. One question in this court arises upon the action of the circuit court in overruling the appellant's motion for judgment in its favor notwithstanding the general verdict. The parties agree in the conclusion

[40 N.E. 520]

that, if the answers to the special interrogatories stand in irreconcilable conflict with the general verdict, the verdict must go down, and the appellant should succeed; otherwise, that upon this question the appellee should succeed. It is also agreed that in passing upon the alleged conflict the court should indulge, in favor of the general verdict, every reasonable hypothesis consistent with the issues, and without reference to the evidence. The propositions in which the parties thus concur are of constant application, and admit of no doubt. Upon the general verdict and the special answers of the jury there is no dispute that the appellant owned the railway upon which the appellee was injured, but the bitterest conflict arises between the parties as to the issues that the appellant was operating the line, and that the appellant was the employer of the appellee, or in any manner responsible for his misfortune. Of the special answers returned by the jury were the following: “(7) Are there two separate and distinct railroad corporations, one called the Baltimore and Ohio and Chicago Railroad Company and the other the Baltimore and Ohio Railroad Company? Ans. Yes.” “(9) Did one of said railroad companies operate, own, and control the train of cars by which the plaintiff was injured? Ans. Yes, the Baltimore and Ohio Railroad Company. (10) Did the Baltimore and Ohio and Chicago Railroad Company own, operate, or control the train of cars by which the plaintiff was injured? Ans. No. (11) What railroad company, if any, paid the plaintiff for his labor? Ans. The Baltimore and Ohio Railroad Company.” The thirteenth, fourteenth, and fifteenth answers find that the train master of the Baltimore & Ohio Railroad Company employed the appellee, and that when injured he was in the service of that company. Reducing these special answers to their exact import, they find that there were two distinct corporations, the appellant and the Baltimore & Ohio Railroad Company; that the latter company, and not the appellant, owned, controlled, and operated the train by which the appellee was injured, and that the appellee was employed by, was serving, and was paid by the latter company. Here is an apparent conflict. The general verdict finds, presumptively, that the appellant was the master of the appellee, and as such owed him the duty of protecting him against its negligence in supplying defective appliances and reckless or unskillful coemployés. This was, as we have shown, the theory of the action, and the issue submitted. But the jury find specially that the appellant was not the master of the appellee, and that another owed the duty charged, and found generally against the appellant. Can this conflict be reconciled upon any reasonable presumption consistent with the issues? The appellee's counsel urge several supposed contingencies in which the facts specially found would not stand in conflict with the general verdict. They say: “Our contention is that, unless the special findings show by what right or authority the Baltimore & Ohio Railroad Company operates this railroad in Indiana, and show that such right or authority is conferred by a statute empowering one railroad company, a domestic corporation, to abrogate and abandon the sovereign franchise delegated to it by the state, and transfer to another corporation the attribute of sovereignty delegated to it, in such a manner, so prescribed by statute, as to exonerate the proprietor of the railroad from liability for the acts of the other corporation in operating its road, whether as assignee, servant, agent, partner, stockholder, lessee, licensee, or trespasser, the proprietary corporation remains jointly or severally liable, at the option of the plaintiff, precisely the same as if it continued in the sole rightful and lawful management of its railroad.” If this were an action by a stranger to the operating company, this argument would appear to possess much strength, and we are not prepared to say that the charter company could, by any of methods suggested, escape liability for an injury done by one permitted to employ its functions to another, a member of the general public, to whom the charter company owes duties arising as the consideration for charter privileges, without having delegated those functions by virtue of and pursuant to authority under the law. Here we have no such question. Whatever the attitude of the operating company, that also is the attitude of the appellee, since he was an operative of the operating company; and the appellant, so far from any liability, owed him no duty whatever, unless possibly that of doing him no willful injury. By the answers to interrogatories we learn that the companies were distinct; that the appellant was not the appellee's master; that the Baltimore & Ohio...

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11 practice notes
  • Mississippi Power & Light Co. v. Smith, 30745
    • United States
    • Mississippi Supreme Court
    • March 12, 1934
    ...39 C. J. 34; 1 Labatt on Master & Servant (2 Ed.), pages 46, 88, sec. 27; Hostel v. Brunswick, 37 S.E. 869; B. & O., etc. v. Ball, 40 N.E. 519; Hukill v. Maysville, etc., Co., 72. F. 742; Empire Trust Co. v. Egypt Ry. Co., 182 F. 107; Kirk v. Williamson & Pond Creek R. Co., 129 S.E. 922; Sw......
  • Markey v. Louisiana & M. R. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 23, 1904
    ...Line & Red River R. Co. v. Culberson, 72 Tex. 375, 10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805; Baltimore & O. & C. R. Co. v. Paul, 143 Ind. 23, 40 N. E. 519, 28 L. R. A. 216; Hukill v. Railroad (C. C.) 72 Fed. 745; Arrowsmith v. Railroad (C. C.) 57 Fed. 165; Nugent v. Railroad, 80 Me......
  • Mississippi Utilities Co. v. Smith, 30418
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...Western Wheel Works v. Stachnich, 102 Ill.App. 420; Postell v. Brunswick & W. R. Co., 112 Ga. 602, 37 S.E. 869; B. & O. R. R. Co. v. Paul, 143 Ind. 23, 28 L.R.A. 216, 40 N.E. 519; Moest v. Buffalo, 110 A.D. 657, 101 N.Y.S. 996, Aff. 193 N.Y. 615, 86 N.E. 1128; Labatt's "Master and Servant,"......
  • Gesualdi v. Conn. Co.
    • United States
    • Supreme Court of Connecticut
    • February 21, 1945
    ...W.Va. 719, 725, 84 S.E. 750, L.R.A.1915E, 1057; and a similar statute no doubt was the reason why, in Baltimore & O. & C. R. Co., v. Paul, 143 Ind. 23, 33, 40 N.E. 519, 28 L.R.A. 216, the court, in finding error, directed judgment in accordance with the answers to interrogatories, though co......
  • Request a trial to view additional results
11 cases
  • Mississippi Power & Light Co. v. Smith, 30745
    • United States
    • Mississippi Supreme Court
    • March 12, 1934
    ...39 C. J. 34; 1 Labatt on Master & Servant (2 Ed.), pages 46, 88, sec. 27; Hostel v. Brunswick, 37 S.E. 869; B. & O., etc. v. Ball, 40 N.E. 519; Hukill v. Maysville, etc., Co., 72. F. 742; Empire Trust Co. v. Egypt Ry. Co., 182 F. 107; Kirk v. Williamson & Pond Creek R. Co., 129 S.E. 922; Sw......
  • Markey v. Louisiana & M. R. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 23, 1904
    ...Line & Red River R. Co. v. Culberson, 72 Tex. 375, 10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805; Baltimore & O. & C. R. Co. v. Paul, 143 Ind. 23, 40 N. E. 519, 28 L. R. A. 216; Hukill v. Railroad (C. C.) 72 Fed. 745; Arrowsmith v. Railroad (C. C.) 57 Fed. 165; Nugent v. Railroad, 80 Me......
  • Mississippi Utilities Co. v. Smith, 30418
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...Western Wheel Works v. Stachnich, 102 Ill.App. 420; Postell v. Brunswick & W. R. Co., 112 Ga. 602, 37 S.E. 869; B. & O. R. R. Co. v. Paul, 143 Ind. 23, 28 L.R.A. 216, 40 N.E. 519; Moest v. Buffalo, 110 A.D. 657, 101 N.Y.S. 996, Aff. 193 N.Y. 615, 86 N.E. 1128; Labatt's "Master and Servant,"......
  • Gesualdi v. Conn. Co.
    • United States
    • Supreme Court of Connecticut
    • February 21, 1945
    ...W.Va. 719, 725, 84 S.E. 750, L.R.A.1915E, 1057; and a similar statute no doubt was the reason why, in Baltimore & O. & C. R. Co., v. Paul, 143 Ind. 23, 33, 40 N.E. 519, 28 L.R.A. 216, the court, in finding error, directed judgment in accordance with the answers to interrogatories, though co......
  • Request a trial to view additional results

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