American Car And Foundry v. Inzer
| Decision Date | 23 April 1913 |
| Docket Number | 7,976 |
| Citation | 101 N.E. 676,53 Ind.App. 316 |
| Parties | AMERICAN CAR AND FOUNDRY COMPANY v. INZER, ADMINISTRATRIX |
| Court | Indiana Appellate Court |
From Clark Circuit Court; William C. Utz, Special Judge.
Action by Jennie Inzer, administratrix of the estate of John Inzer deceased, against the American Car and Foundry Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
M. Z Stannard, for appellant.
George H. Voigt, for appellee.
This action was commenced in the Clark Circuit Court to recover damages from appellant for causing the death of John Inzer. This is the second appeal. On the first appeal the complaint was held insufficient and the judgment was reversed by the Supreme Court for that reason. American Car, etc., Co. v. Inzer (1909), 172 Ind. 56, 87 N.E. 722. An amended complaint was afterwards filed and a second trial resulted in a judgment for plaintiff and this appeal was taken. The amended complaint upon which the judgment appealed from was rendered is based on the Employer's Liability Act, § 8017 Burns 1908, Acts 1893 p. 294. As shown by the allegations of this complaint the defendant was a corporation engaged in the manufacture of cars at the city of Jeffersonville. The deceased was at the time of his death employed by the defendant and was engaged in tinning the roof of a car standing in one of the buildings connected with the plant, and for the purpose of doing the work he occupied a position on top of the car. The car upon which he was working was coupled to five other cars and while he was so engaged a locomotive engine, owned and operated by defendant, was coupled to the north one of these cars for the purpose of moving the six cars out of the building into the yard. Decedent was on the top of the fourth car from the engine and as this car passed through the door his body came in contact with the timbers at the top of the door and he was thrown to the track between the fourth and fifth cars. He was dragged under the front trucks of the fifth car a distance of fifty or sixty feet to a point where the car stopped outside the building in the yards of the defendant. After the car had stopped Inzer was lying across the rail immediately back of the front truck of this car. One of his legs was broken and he was in a helpless condition on account of his injuries. The complaint, in substance, alleges that while Inzer was so lying upon said track, one William Dolan, who was in the employ of defendant and who had charge of the train and who was authorized and required by defendant to direct its movements, negligently gave an order to the engineer to back the train; and that the engineer in obedience to the order so given backed the train causing the wheel to pass over the body of Inzer thus causing his death. It is alleged that Dolan before giving the order to back the train, was informed and knew that Inzer was under the train, and that, by the exercise of ordinary care, he could have known that he was in such a position that the backing of the train would cause his death.
If the Employer's Liability Act applies to the business in which appellant was engaged, it was responsible for the negligence of Dolan under clause four of that act; but, if the act does not apply, Dolan was a fellow servant with Inzer and the master would not be responsible for any injury caused by his negligence. Appellant asserts that the act in question does not apply to it, for the reason that it is a private corporation and not a railroad corporation engaged in operating a commercial railroad. The case of Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 80 N.E. 529, 14 L.R.A. (N. S.) 418, is cited to sustain this position. The decision in this case, when construed in the light of later decisions of the Supreme Court upon the same question, does not support appellant's contention. In this case it was said, "One rule of liability can not be established for railway companies, merely as such, and another rule for other employers, under like circumstances and conditions." The law was upheld as constitutional in so far as it relates to the business of railroading upon the ground that it does not classify employers of labor, but that it does classify the business in which laborers are employed and places the business of railroading in a class to itself and makes the law applicable thereto. The classification is justified upon the ground that the well-known hazards incident to the operation of trains on railroads afford a sufficient reason inherent in the subject-matter to justify the classification. If the distinction thus made is to be maintained, we should not look to the character of the employers for the purpose of determining whether or not the law should apply, but we must look to the nature of the business in which they are engaged. If the business is the operation of cars and trains on a railroad under such circumstances as to expose employes to the dangers and hazards incident to the operation of a train, then the law should be held to apply to such business, whether it be conducted by an individual, a firm, a private corporation, or a public corporation. The Supreme Court in a recent case said: "If the character of the employer, within the meaning of the statute, is not important, and the nature of the employment is the test to be applied in construing the statute, the expression 'every railroad or other corporation operating within the State,' as applied to railroads, should, under the rule above stated, be enlarged and expanded so as to include any person, company, or corporation engaged in operating a railroad in this State." Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 465, 78 N.E. 1033.
As construed by the Supreme Court the statute under consideration classifies the business in which employers of labor are engaged and places the business of railroading in a class by itself, and its application is further restricted to that department of the business which has to do with the operation of trains and which exposes employes to the dangers incident to such operation. Richey v. Cleveland, etc., R. Co. (1911), 176 Ind. 542, 96 N.E. 694.
Under the law announced in these decisions we must look to the character of the business in which the employer was engaged for the purpose of determining whether such employer was operating cars and trains of cars upon a railroad under such conditions as expose employes or some of them to the hazards incident to the operation of trains. It is not necessary that the business should be the operation of a commercial railroad or that operating a railroad was the only business of the employer, or that it was even his principal business. If in one department of its business, appellee operated locomotives, cars, and trains of cars upon a railroad track and if the dangers incident to such operation were substantially the same as are incident to the operation of trains on a commercial railroad, we can think of no good reason why the Employer's Liability Act should not apply to that department of its business. The allegations of the complaint with reference to the character of the business in which appellee was engaged are as follows: ...
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