Baltimore & O.R. Co. v. Ranier

• Decision Date: 05 November 1925
• Docket Number: No. 12336.,12336.
• Citation: 84 Ind.App. 542,149 N.E. 361
• Court: Indiana Appellate Court
• Parties: BALTIMORE & O. R. CO. v. RANIER.

84 Ind.App. 542

149 N.E. 361

BALTIMORE & O. R. CO.

v.RANIER.^*

No. 12336.

Appellate Court of Indiana, in Banc.

Nov. 5, 1925.

Appeal from Circuit Court, Steuben County; Wm. P. Endicott, Judge.

Action by James N. Ranier, by next friend, against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.H. W. Mountz, of Garrett, C. C. Carlin, of Angola, and Chas. D. Clark, of Chicago, Ill., for appellant.

Alphonso C. Wood, of Angola, Finley A. Nash, of Garrett, and Link & McClintock, of Auburn, for appellee.

McMAHAN, J.

Complaint by appellee against appellant for personal injuries. From a judgment in favor of appellee, appellant appeals, and assigns as error the action of the court in overruling its demurrer to the amended complaint, and in overruling its motion for a new trial.

Appellee in his amended complaint, among other things, alleged that on July 22, 1922, appellant employed in its shops and yards at Garrett, Ind., a large number of boys from 14 to 18 years of age; that it then had in its employ appellee, a boy then 16 years of age; that said boys, including appellee, were employed as common laborers; that a number of them, with the knowledge and consent of appellant, took their dinners with them and ate the same at convenient places in appellant's shops and buildings, and remained on appellant's premises during the noon hour until time to go to work; that on said day appellee and James Williams, a boy of 16 years of age, and Gerald Hart, then 16 years of age, together with other minors were employed in the yards and shops as common laborers and at noon ate their lunches in the tool shop adjoining a carpenter shop on appellant's premises; that along one side of the carpenter shop there was a railroad track belonging to appellant and a loading or freight platform in front of said carpenter shop and adjacent to the railroad track, used for the purpose of loading and unloading material, equipment, and supplies by appellant; that during said noon hour, after appellee and his companions had eaten their dinner, it began to rain, and appellee took refuge in an unloaded freight car on the track next to said freight platform, and sat in the doorway thereof with his back to the platform, and that said Williams and Hart were in and about said freight car and platform; that appellant had negligently placed upon said platform, a day or more prior thereto, a common stone jug resembling an ordinary water jug of one-gallon capacity containing sulphuric acid, a deadly and dangerous liquid, liable to inflict great injury and loss of life when brought into contact with a human being, and carelessly failed to place a cork in said jug or to label it or mark it so as to make known its contents, and negligently failed to guard and protect it from coming in contact with any person who might lawfully be on or about said platform, and negligently failed to warn appellee or any of the other persons working about said platform of the contents of said jug, and the dangerous liquid therein; that appellant knew appellee and his associates were minors and had insufficient discretion to know or comprehend the danger attached to the use or handling of sulphuric acid, and had known for a long time prior thereto that said minors were employed about said platform and vicinity, and were accustomed to congregate on said platform and to eat their lunches thereon, and in said carpenter shop during noon hour, and knew, if said jug and its contents were handled by appellee or his coemployees, it would result in serious injuries to them, and, with knowledge of said facts, permitted said poisonous and corrosive liquid to remain upon said platform for a long period of time prior to said day exposed to interference by any person who might be on or about said platform; that during the noon hour of said day while appellee was sitting in said car said Williams and Hart, while engaged in play and without any knowledge on their part of the contents of said jug or that there was any danger connected with the handling of it, said Williams, believing said jug to be a common jug containing water, picked it up and undertook to and did squirt and propelled the liquid therein out of the jug toward Hart; that a large quantity of said liquid was forceably propelled from the jug and missed Hart and struck appellee on the back of the head, neck, and body, saturated his clothing, and came in contact with his skin, and seriously injured him, said injuries being specifically and fully described.

Appellant contends that it affirmatively appears from the amended complaint that the injury complained of was caused by the intervention of an independent agency for which appellant was not responsible, and but for it the injury complained of would not have occurred, and that it does not appear that the alleged negligence of appellant was the proximate cause of appellee's injury.

[1] Appellee insists that no question is presented concerning the sufficiency of the complaint, for the reason that the record does not disclose that a demurrer was filed to the amended complaint. The contention of appellee is based upon the fact that the demurrer was addressed to the complaint and not to the amended complaint. The contention of appellee cannot be sustained. The filing of the amended complaint took the original complaint out of the record the same as if it had never been filed. Gowen v. Gilson, 142 Ind. 328, 41 N. E. 594;Insurance Co. v. Coombs, 19 Ind. App. 331, 49 N. E. 471. And a demurrer to the “complaint,” filed after the filing of an amended complaint, will be considered as addressed to the amended complaint then on file. Town of Whiting v. Doob, 152 Ind. 157, 52 N. E. 759;Chicago, etc., R. Co. v. Stepp, 44 Ind. App. 353, 88 N. E. 343.

[2] We had occasion to review many of the authorities on proximate cause and intervening agency in Sarber v. City of Indianapolis, 72 Ind. App. 594, 126 N. E. 330, where it was held that, where there is an intervening responsible agency which directly produces an injury, the question whether the original negligence is to be regarded as the proximate cause, or only as a condition, or remote cause, is to be determined by ascertaining whether the intervening agency was of such a character, and the circumstances under which the injury occurred were such that it might have been reasonably expected that such an agency or a similar one would intervene in such a way as to be likely to produce an injury similar to the one actually caused, and if, under the circumstances, the intervention of such an agency, and the manner of its occurrence, might reasonably have been expected in the usual course of events and according to common experience, then the chain of causation from the original cause is not broken, and the original act will be treated as a proximate cause.

One who has in his possession or under his control a dangerous agency must use care commensurate with the known danger and especially the danger with reference to immature persons who are likely to come in contact therewith. In order to render appellant liable in the instant case, it is not necessary that it should have reasonably anticipated that an injury might have happened to some person in the exact manner in which appellee was injured. For other cases discussing the...