Indiana, I.&I. Ry. Co. v. Snyder
| Decision Date | 01 March 1895 |
| Citation | 39 N.E. 912,140 Ind. 647 |
| Court | Indiana Supreme Court |
| Parties | INDIANA, I. & I. RY. CO. v. SNYDER. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Jasper county; P. H. Ward, Judge.
Action by James Snyder, administrator, against the Indiana, Illinois & Iowa Railway Company. On rehearing. For former opinion, see 32 N. E. 1129.
H. K. Wheeler and S. P. Thompson, for appellant. E. P. Hammond and Wm. B. Austin, for appellee.
This was an action by appellee, as administrator of James Pickner, deceased, against appellant, to recover damages on account of a personal injury, which resulted in the death of decedent. The complaint, omitting the formal parts, sufficiently alleges, among other things, that the deceased, while in the employ of appellant as a section hand, in the proper discharge of his duties as such servant, in operating a hand car upon appellant's road, was injured, and thereby killed, by reason of the negligence of appellant in failing to furnish him safe machinery and appliances with which to do his work and discharge his duties as such employé; that while engaged in propelling said hand car the handle thereof broke, by reason of the fact that it was defective, unsafe, and dangerous, which rendered it unsafe for use,-all of which, at the time of the accident, and long prior thereto, was known to appellant, and wholly unknown to decedent; that appellant negligently and carelessly furnished the same for the use of the deceased as such servant; that the injury and death alleged occurred without the fault or negligence of the employé. A trial resulted in the jury returning a general verdict in favor of appellee, together with numerous answers to interrogatories. Over motion for judgment on answers to interrogatories and for a new trial the court rendered judgment on the verdict, from which this appeal is prosecuted. The errors assigned in this court are: (1) The court erred in overruling the demurrer to the complaint. (2) The court erred in sustaining the demurrer to the first paragraph of the answer. (3) The court erred in overruling appellant's motion for judgment on the answer of the jury to the special interrogatories notwithstanding the general verdict. (4) The court erred in overruling the motion for a new trial.
The first and second alleged errors are not argued by counsel for appellant, and therefore are waived, and will not be considered by this court.
The action of the court below in giving and refusing instructions is complained of and criticised by the learned counsel for appellant. In the motion for a new trial the error of the trial court in giving and refusing instructions was assigned as follows: These assignments are both joint, and the instructions given are called in question as an entirety, as are likewise those refused. It is well settled by the decisions of this court that assignments in gross, like the above, can only be maintained and be available to the party complaining upon his showing that all of the instructions given are erroneous, and all refused are correct. Railroad Co. v. McCartney, 121 Ind. 385, 23 N. E. 258;Wallace v. Bank, 126 Ind. 265, 26 N. E. 175. It is evident that at least some of the instructions given were proper, and that some refused were not correct, and hence, under the rule stated, the contention of appellant must fail, and this court must decline to consider the points attempted to be raised upon the instruction given or refused by the trial court. From the evidence in the record and the answers of the jury to the interrogatories, the following material facts substantially appear to have been established upon the trial of this cause: That James Pickner, the deceased, on February 22, 1889, and prior thereto, was in the employ of the appellant, and a servant thereof, in the capacity of a section hand. On that day he, with three other section men in the employ of appellant, boarded a hand car, for the purpose of returning from their labor. This car had been furnished by appellant to the deceased and the other section hands, to be used by them in the discharge of their duties, and in going to and returning from their work. On the day in question the weather was intensely cold, and a strong wind was blowing from the direction that these men were propelling the hand car. Each turned his back from the wind as a protection from the intense cold. The deceased was riding upon the front end of the car, and, while assisting in propelling it, the handle of the car, upon an upward stroke, suddenly broke, and thereby he was thrown upon the railroad track, and sustained injuries from the effects of which he died, leaving surviving him a wife and one minor child. The appellant maintained and operated machine shops, for the purpose, in the main, of repairing its machinery and appliances, including its hand cars, used by it in the operation of its road and the business in which it was engaged. The car in question, some six or eight weeks prior to the time of the accident, had been sent by appellant to these shops for repairs, including a new handle. The handle in controversy was manufactured and placed in the car by one Savoie, who was a mechanic, being a carpenter of 30 years' experience in the employ of appellant at same shops, engaged in the work of repairing the company's hand cars. The handle which broke was constructed by Savoie out of ash lumber, which was brash or brittle, defective and unsound, and, as some of the witnesses stated, rotten or decayed,-a condition which Savoie, in the construction of the handle, could and did discover, and of which he thereby had notice. That the external or surface appearance of the handle, when constructed and placed in the car, was such that its defective condition could not be discovered by inspection of its surface, or by those who used it. That the car had been returned from said shops, where it had been repaired, and had been in use thereafter about six weeks, during which time the deceased had used it in and about his work as a section hand. The appellant had ordered clear, white ash lumber, free from knots, for the construction of its car handles, and when delivered it had been inspected in bulk, and no defects in the lumber had been discovered. That white ash lumber is the kind generally used for such handles. That the deceased had no notice or knowledge of the defective condition of the handle. That the handle broke on account of the brittle, brash, and unsound lumber from which the same was made. That the decedent was free from contributory negligence.
The point involved, and the one upon which the decision of the case at bar must turn, is: Was Savoie, the carpenter, in the employ of appellant at its shops, to whom the business of making and placing the handle in question in the hand car had been intrusted, the vice principal or representative, in this matter, of appellant, so that knowledge to him could be imputed to appellant, and whose failure to exercise due care in discharge of the duty delegated to him would render appellant liable, or was he but a fellow servant with the deceased in relation to the construction of the car handle? The following statement of the law pertaining to the relation of master and servant is firmly established by the decisions of this court and by the courts of last resort in many of our sister states: That in the contract of hiring there is an implied undertaking on the part of the master that he will use all reasonable care to furnish premises, machinery, and appliances for conducting the business safely, and that he will use all reasonable care to furnish competent and prudent coemployés; but the master, by the contract of hiring, does not become an insurer against injury to the servant. On the other hand, there is an implied undertaking on the part of the servant that he will exercise reasonable care to avoid injury, and that he assumes all ordinary risks incident to the business, and all risks from the negligence of his coemployés. When the master has kept and performed his implied undertaking, the servant cannot recover from him for injuries resulting from the business or negligence of coemployés, however dangerous the business may be. If the servant claims damages from the master for injuries received on account of defective premises, buildings, machinery, or appliances, he must allege and prove that the unfitness or defect which caused the injury was known to the master, or was of such a character as that, with reasonable diligence and attention to his business, he ought to have known it. Railway Co. v. McCormick, 74 Ind. 440;Robertson v. Railroad Co., 78 Ind. 77;Umback v. Railroad Co., 83 Ind. 191; Railroad Co. v. Orr, 84 Ind. 50;Coal Co. v. Cain, 98 Ind. 282; Capper v. Railroad Co., 103 Ind. 305, 2 N. E. 749; Thomp. Neg. 971; Wood, Mast. & S. §§ 368-414; Railroad Co. v. Wagner, 33 Kan. 660, 7 Pac. 204; Railroad Co. v. Love, 10 Ind. 554;Railway Co. v. Adams, 105 Ind. 151, 5 N. E. 187. It is also settled that the duty of the master to furnish his servant with a safe place to work, safe machinery, and appliances is a duty of which he cannot rid himself by casting it upon an agent, officer, or servant employed by him. The distinction between the negligent performance of a duty by a servant and the negligent omission of a duty by the master is plain and well understood. Where the duty is one owing by the master, and he intrusts it to the performance of a servant or agent, the negligence of such servant or agent is the negligence of the master. As the...
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