Ames v. The Lake Shore And Michigan Southern Railway Company

• Decision Date: 11 November 1893
• Docket Number: 16,389
• Citation: 35 N.E. 117,135 Ind. 363
• Parties: Ames, Administrator, v. The Lake Shore and Michigan Southern Railway Company
• Court: Indiana Supreme Court

35 N.E. 117

135 Ind. 363

Ames, Administrator, v. The Lake Shore and Michigan Southern Railway Company

No. 16,389

Supreme Court of Indiana

November 11, 1893

From the Elkhart Circuit Court.

The judgment is affirmed.

H. D Wilson, W. J. Davis and H. C. Wilson, for appellant.

F. E Baker, C. W. Miller and J. H. Baker, for appellee.

OPINION

Hackney, J.

This action was by the appellant for damages on account of the death of Findley B. Deuel, an employe of the appellee.

The complaint was in two paragraphs, to each of which the lower court sustained a demurrer, and their sufficiency is the only question made by the record.

The cause of action stated in the first paragraph is that Deuel for the two years prior to August 30, 1890, was employed by the appellee as a brakeman, manager and conductor of its switch engine in the city of Elkhart; that in said city, the company maintained an adjustable or sliding rail, to line with either of the two opposite abutting rails, commonly called a stub switch; that in transferring cars from one track to another, by the use of said switch, there was made an opening between said abutting rails, in the line of the track, three and one-half inches wide by ten inches long; that the opening became a place of great danger to persons coupling or uncoupling cars at the location of said switch, owing to the fact that if the foot were thrust into said opening, it could not be extricated without withdrawing it from the end at which it had entered; that it was the duty of the company to put a block or other substance into said opening to avoid said danger, which duty was usually performed, as said Deuel knew; that for thirty days prior to August 30th, said opening had not been blocked, of which fact the company was fully aware during said time, and on the night of that day said Deuel, in the discharge of his duty, was walking with one foot inside the rail of the track and the other on the outside, approaching said switch, for the purpose of uncoupling cars; that to so walk was necessary to enable him to reach the coupling-pin, and withdraw the same; that while so walking, his foot caught in said opening, and he was unable to withdraw it, but was held until the moving train had run over and killed him.

It is alleged that Deuel was free from negligence, and that he "did not then know the switch was not blocked."

The second paragraph differs from the first only in alleging that the switch had not been blocked for five days, and that Deuel was in the act of coupling instead of uncoupling cars.

The sufficiency of the paragraphs is attacked upon the theory that the specific allegations, contrary to the general allegation, show that Deuel knew of the absence of the block from the switch, and that, with such knowledge, he was negligent in attempting the performance of the duty alleged.

We do not view the question involved as one of contributory negligence, but as one involving the assumption of the risk as one of the hazards of the service.

The distinction is clearly made in Louisville, etc., R. W. Co. v. Corps, 124 Ind. 427, 24 N.E. 1046, and was emphasized in Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156; 33 N.E. 355.

In actions of this character, therefore, it is necessary, not only to allege freedom from contributory negligence, but to allege such facts as show that the injury was not the result of some hazard of the service assumed by the servant.

This requirement is usually met by an allegation that the defect or want of skill complained of was unknown to the person injured. The attempted compliance with this requirement in the case in hand was by alleging that the deceased did not know of the absence of the block at the time he went upon the track.

The sufficiency...