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

• Citation: 83 N.E. 369,169 Ind. 670
• Decision Date: 17 January 1908
• Docket Number: No. 21,072.,21,072.
• Parties: CHICAGO, I. & L. RY. CO. v. BARKER.
• Court: Supreme Court of Indiana

169 Ind. 670

83 N.E. 369

CHICAGO, I. & L. RY. CO.

v.BARKER.

No. 21,072.

Supreme Court of Indiana.

Jan. 17, 1908.

Appeal from Circuit Court, Owen County; G. W. Grubbs, Judge.

Action by Dolly M. Barker, as administratrix of deceased, against the Chicago, Indianapolis & Louisville Railway Company. From a judgment for plaintiff, defendant appeals. Reversed with instructions.

Transferred from Appellate Court, 81 N. E. 1179.

E. C. Field and H. R. Kurrie, for appellant. Chas. E. Thompson and Homer Elliott, for appellee.

HADLEY, J.

Appellant owns and operates a railroad from Chicago to Louisville, through Indiana, and by way of Quincy, Owen county. At Quincy there is a station house on the west side and a switch on the east side of the main track. Four hundred and fifty feet north of the station is the north connection of the switch with the main track. The switch is operated by a switch stand, located on the west side, and about 6 feet from the west rail of the main track. The switch stand is 8 feet high, and has on top two wings, one painted red and the other white, and which serve as targets to signify to approaching trainmen whether the switch is open or closed; the red, when standing at right angles with the main track, indicating danger, or an open switch, and the white, when standing at right angles with the main track, indicating safety, or a closed switch. In the opening or closing of the switch the wings of the stand work automatically, and when in repair cannot mislead. Between the switch stand and the station house a country highway crosses the railroad, and on the west side of the main track is a warning board to caution travelers on the highway. In the north end of the station house is an observation window from which an unobstructed view up the track northward may be had for a long distance. The company also maintains at the station house a semaphore signal in the care and management of the telegraph operator, who was also the station agent, and which was 20 feet high, and had on top two blades 5 feet long and 6 inches wide, painted white and in colors, and by which device the telegraph operator signaled to approaching trainmen any orders he had to deliver, and whether or not the train should be stopped at the station. In approaching Quincy from the north the track is on a heavy downgrade. On December 30, 1902, the decedent Barker was in the employ of the appellant as a locomotive engineer, and as such had charge of a south-bound, through freight, the running time of which was scheduled at 30 miles an hour, and which, as the same approached Quincy, was running at that rate. There were other loaded cars standing on the switch. The switch had been left open, and Barker's train took the siding, collided with the standing train, and he was killed in the wreck which followed. Dolly M. Barker, his widow, qualified as administratrix, and brought this suit for the benefit of herself and children. The foregoing facts are set forth in all the four paragraphs of complaint, to each of which paragraphs a demurrer for insufficiency of facts was overruled and put at issue by the general denial. The cause was submitted to a jury, which returned a verdict for appellee. With the general verdict were also returned answers to a large number of interrogatories.

The record shows that the only demurrers filed by appellant were addressed to the several paragraphs of the “amended” complaint. These demurrers were overruled, to which rulings exceptions were reserved. In its assignment of errors in this court it is complained that the court below erred in overruling the several demurrers to the “complaint.” Upon this showing it is contended by appellee that no question is raised here on the sufficiency of the several paragraphs of the complaint, because the record shows that there was no demurrer filed, and no exceptions reserved to any such pleading. We think otherwise. It further appeared from the record that when the demurrers were presented the only complaint then, theretofore, or thereafter, on file, was the complaint that now appears in the record. There was, and is, therefore, no possible chance for a mistake in the identity of the complaint demurred to. In this respect the record before us is radically different from the records in the cases cited by appellee. All the paragraphs of the complaint relate to the same injury.

Was the first paragraph sufficient? It is first alleged in this paragraph “that it was the duty of the defendant to keep the switch and appliances and mechanical devices attached, as a part of the defendant's railroad, in good repair, and safe for use by its employés, and that on the day aforesaid the defendant negligently suffered said switch to become, and remain, out of repair, and in an unsafe and dangerous condition in this, to wit: Said defendant, on said December 30, 1902, carelessly and negligently permitted said switch to become unlocked, and so turned open and adjusted, as to cause the train on which said Barker was then and there performing his duties as engineer, and which was running at a high rate of speed, to pass from the main track onto the switch and collide with certain heavily loaded cars standing thereon, whereby said train was wrecked and said Barker killed.” All the default and negligence that resulted in the switch being left open is charged directly against the defendant. It is a well established rule of pleading that a complaint for negligence against a railroad company must show by proper averments the violation of a duty owing to the plaintiff by the company, or by some one else for whose particular acts the company is held, by statute, to be responsible. It is not sufficient to allege in general terms that it was the duty of the defendant to do this, or to do that. Such an averment is the statement of a conclusion, not of a fact. Railroad Co. v. Peck, 165 Ind. 537, 540, 76 N. E. 163, and cases cited. The general rule in such cases is that the pleader must distinctly set forth in his complaint the facts which he claims creates the duty that has been violated, and from the facts so stated the court will determine as a matter of law the existence or the nonexistence of the duty. Pittsburg, etc., Co. v. Lightheiser, 163 Ind. 247, 71 N. E. 218, 660;Indianapolis, etc., Co. v. Foreman, 162 Ind. 100, 69 N. E. 669;Cleveland, etc., Co. v. Parker, 154 Ind. 153, 56 N. E. 86;Evansville, etc., Co. v. Duel, 134 Ind. 160, 33 N. E. 355;Chicago, etc., Co. v. Frye, 131 Ind. 325, 28 N. E. 989;Indiana, etc., Co. v. Dailey, 110 Ind. 75, 10 N. E. 631;Lake Shore, etc., Co. v. Stupak, 108 Ind. 1, 8 N. E. 630;Pittsburgh, etc., Co. v. Adams, 105 Ind. 163, 5 N. E. 187;South Bend, etc., Co. v. Cissne, 35 Ind. App. 375, 74 N. E. 282;Creamery Packing Co. v. Hotsenpiller, 24 Ind. App. 122, 56 N. E. 250. The duties of master and servant are correlative. On the one hand, it is the duty of the master to employ none but competent servants, to use due care in providing his servants with a safe machine and appliances to work with, and to exercise reasonable diligence to keep them in good repair; and to the end that they be kept in good repair he is required to make inspection at reasonably frequent intervals. These duties are duties the master owes his servants, the performance of which he cannot delegate to another so as to relieve himself from responsibility for their nonperfect or imperfect performance. 20 A. & E. Ency. (2d Ed.) p. 55, and cases cited. On the other hand, the duty of operating the machine in all its details and departments is a duty the servant owes the master, and when any duty connected with operating any part of the machine is delegated to another by the master, such person performing such duty is a fellow servant of all others engaged by the master in carrying on the common enterprise. Indianapolis, etc., Co. v. Foreman, 162 Ind. 85, 69 N. E. 669, 102 Am. St. Rep. 185;Hodges v. Standard Wheel Co., 152 Ind. 680, 52 N. E. 391, 54 N. E. 383;Baltimore, etc., Co. v. Little, 149 Ind. 167, 48 N. E. 862;Indianapolis, etc., Co. v. Andis, 33 Ind. App. 625, 72 N. E. 145;St. Louis, etc., Co. v. Needham, 63 Fed. 107, 11 C. C. A. 56, 25 L. R. A. 833;Cleveland, etc., Co. v. Brown, 73 Fed. 970, 20 C. C. A. 147; Labatt on Master and Servant, p. 1726. In the last case it is said: “The roadbed, tracks, ties, stations, rolling stock, and all the appurtenances of a well equipped railroad together constitute a great machine for transportation. It is the duty of the railroad company to use ordinary care to furnish a sound and reasonably safe machine, to use diligence to keep it in proper repair, and to use ordinary care to employ reasonably competent servants to operate it; but when this duty is performed the duty rests upon the servant to operate it carefully.”

In the complaint under consideration it is not averred that the switch or any of its appliances was unsound, defective, or out of repair. The negligence complained of was not in construction, preparation, or repair of the railroad, but in its operation. The switch, as a part of the railroad, was safe before it was made unsafe by some one, who in doing it was not imperfectly performing a duty of the master. The allegation is that the defendant negligently permitted such switch to become unlocked and turned open and so adjusted as to carry the decedent's train from the main track onto the siding. According to the averments the situation resulted from no fault of the switch, or any appurtenances by which it was operated. It was made to unlock and turn open and shift the continuity of the rails from the main track to the siding. So far as the averments show, the master, or defendant, had not failed in any particular to furnish the plaintiff's decedent with a safe place and safe instrumentalities to work with, nor in any way failed to employ competent servants, nor to keep such place and instrumentalities inspected, and in good condition...