Baltimore & Ohio Southwestern Railroad Co. v. Hunsucker

• Decision Date: 07 April 1904
• Docket Number: 4,455
• Citation: 70 N.E. 556,33 Ind.App. 27
• Court: Indiana Appellate Court
• Parties: BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY v. HUNSUCKER

70 N.E. 556

33 Ind.App. 27

BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY v. HUNSUCKER

No. 4,455

Court of Appeals of Indiana

April 7, 1904

From Jackson Circuit Court; T. B. Buskirk, Judge.

Action by William Hunsucker against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff defendant appeals.

Reversed.

Edward Barton, O. H. Montgomery, H. D. McMullen, H. R. McMullen and C. W. McMullen, for appellant.

T. J Burton, F. M. Vance and McHenry Owen, for appellee.

OPINION

WILEY, P. J.

Action by appellee to recover damages for personal injuries inflicted by the alleged negligence of appellant. Complaint in two paragraphs, to which a demurrer was overruled. Answer in two paragraphs, to the second of which a demurrer was overruled. Reply in denial, trial by jury, general verdict for appellee, and answers to interrogatories. Appellant's motion for judgment on the answers to interrogatories and for a new trial overruled. Appellant also moved to reject and dismiss appellee's complaint on the ground that he refused to submit to an examination as a witness prior to the trial, which motion was also overruled.

All rulings adverse to appellant are assigned as errors. Appellee has assigned as cross-error the overruling of his demurrer to the second paragraph of answer.

The first paragraph of complaint avers that appellee was in the employ of appellant as a section man; that he was forty years of age, in good health, and was of great physical strength; that on the 19th of June, 1901, while so employed, there was a wreck of freight-cars on appellant's road, by which some cars were derailed and broken into fragments; that it was necessary, to clear away said wreckage, to place the derailed cars back on the track, and, in clearing away said wreckage, it became necessary to hoist and load and haul parts of the broken cars away; that it became necessary for the superintendent of wreckage to take charge of the work, and it was the duty of the section men to obey his orders and directions, and said superintendent ordered and directed the section men, including appellee, to assist in the work; that the superintendent of wreckage had the necessary appliances, derrick, tools, and implements to clear away the wreckage, and had the same in process of operation, and, in addition thereto, had cars, engines, and trains for the purpose of carrying the wreckage away; that it was a part of appellee's duty to assist in clearing away said wreckage; that in performing said work there was used for loading the heavy parts a derrick, until near its completion, when it became necessary to load a heavy piece known as a "car bolster" which weighed about 1,500 pounds; that in loading the same, the superintendent of wreckage ordered and directed the section men, including appellee, to take hold of the same with their hands and load it into one of the "dump or side-dump" cars, which had a high siding; that in attempting to load it several of the employes, including appellee, took hold of it, which was irregular in shape, had bolts, boltheads, or plates projecting on the sides or edges, which prevented it from slipping on the top of the car, and when they had placed one end on the top of the end of said dump-car there was a bolt or bolthead or plate projecting from the underside, which made it necessary to lift the said car bolster so it would pass said point and slip over the end into the car, but in attempting to do so the bolster was too heavy for the number of men who could get hold of it to handle it, and appellee, being at the end of the bolster, with his hands and right shoulder under and attempting to support it, and standing on the ground, and being lower than the top of the dump-car, and those engaged in trying to load it in the car being unable to hold it by reason of its weight, it slipped back against appellee's shoulder, and, being unable to extricate himself and escape, he had to hold the same, whereby he was injured. (Here follows the particulars of the injuries appellee sustained.)

This paragraph of complaint then charges appellant with these specific acts of negligence, to wit: That the said car bolster was too large and heavy and ill shaped to be loaded on a car by the personal and manual efforts of the section men, and should have been hoisted and loaded by the derrick which was there and in use, and could have been supplied by the exercise of reasonable care; that to attempt so to load the same into a car with the sides and ends thereof eight to ten feet high was dangerous to life and limb, and was known to be so by appellant, and that appellant also knew that the proper and safe way to load the said car bolster was by the use of the derrick; that appellee had no knowledge of the great weight of the car bolster, nor of the danger or unsafety of attempting to hoist and load it in the manner attempted; that he had no knowledge or notice that there were upon the sides and edges of the car bolster any bolts, boltheads, or plates projecting therefrom, and did not know it was dangerous to attempt to load it until the same had been placed upon the top of the end of the car, at which time it became impossible for him to extricate himself from danger without almost certain death to himself and great injury to his fellow laborers. It is then averred that "his said injuries were incurred wholly by reason of the carelessness, negligence, and failure to furnish him with a reasonably safe and suitable place to work."

In the second paragraph of complaint appellee seeks to fix the liability upon the appellant, under subdivision two of § 7083 Burns 1901, commonly known and designated as the employers' liability act. It is averred that one Hodapp was appellant's superintendent of wreckage, to whom was delegated authority to manage and control the work of clearing away wreckage on the lines of its road; that said Hodapp had full power and authority to manage and control the work of clearing away the wreckage of broken cars and debris, and had full power to control and manage the servants and laborers of appellant, including appellee; that said Hodapp had authority to give orders and directions, which appellee and other employes were bound to obey and conform to; that appellee did so obey and conform to said orders and directions, and was at the time of his injuries performing his duties in conformity and obedience to said orders. It is further alleged that appellee's injuries were caused wholly by reason of the negligence and carelessness of said Hodapp; that said superintendent should have used the derrick, which appellant had provided, to hoist and load the car bolster; that it was too heavy to be loaded by hand, and to attempt to load the same by hand was dangerous and unsafe; but Hodapp, disregarding his duty to appellee to provide him a reasonably safe and suitable place in which to work, ordered and directed appellee, with other employes, to take hold of said car bolster and load the same, well knowing it was too heavy to be handled with reasonable safety, and negligently failed to warn appellee of the danger; that said Hodapp, by giving said order and direction, made the place of work dangerous and unsafe, and that appellee did not know of such danger. It is also further alleged that appellee, at the time of, and prior to his said injury, had no knowledge of the great weight of said car bolster, nor of the danger and unsafety of so attempting to hoist and load the same into the car by hand, and that he was in the exercise of due care and diligence for his own safety, and was free from any fault or negligence on his part. It will be observed that in this paragraph of complaint, no charge of negligence is made on the ground that bolts, boltheads, and plates were projecting from the car bolster.

It is shown by the first paragraph of complaint that it was a part of appellee's duties as a section man to assist in clearing up wreckage within his territory. The first paragraph is a common law count for injuries sustained while appellee was in the line of his duty, and that his injuries resulted from appellant's negligence. The acts of negligence charged are both acts of omission and commission, in that it was negligence to omit to use the derrick in loading the car bolster, and that it was also negligence to attempt to load it by manual strength, as detailed. The direct cause of appellee's injury, as shown by this paragraph, was a projecting bolt on the car bolster, which kept it from slipping over the end of the car into which it was being loaded, and by reason of its great weight caused it to slip back on appellee's shoulder. The first paragraph avers that appellee had no knowledge or notice that there were upon the edges or sides of the car bolster any bolts, boltheads, or plates projecting therefrom, and did not know that it was dangerous or unsafe to assist in the attempt to load said car bolster until the same had been placed on the end of the car.

There is wanting in the complaint any averment that appellee could not have known, by the exercise of reasonable care, that there were projecting bolts, boltheads, or plates on the car bolster, before he began to move it, or that he could not have known, by the exercise of reasonable care, that it was dangerous to undertake to move it in the...