Baltimore & O.S.W.R. Co. v. Burtch

• Decision Date: 14 March 1922
• Docket Number: No. 23536.,23536.
• Citation: 192 Ind. 199,134 N.E. 858
• Court: Indiana Supreme Court
• Parties: BALTIMORE & O. S. W. R. CO. v. BURTCH

192 Ind. 199

134 N.E. 858

BALTIMORE & O. S. W. R. CO.

v.BURTCH^*

No. 23536.

Supreme Court of Indiana.

March 14, 1922.

Appeal from Circuit Court, Jackson County; James A. Cox, Judge.

Action by Guerney O. Burtch against the Baltimore & Ohio Southwestern Railroad Company. From judgment for plaintiff, defendant appeals. Affirmed.

*859Morrison R. Waite and Wm. A. Eggers, both of Cincinnati, Ohio, Kochenour & Prince, of Brownstown, and McMullen & McMullen, of Aurora, for appellant.

Montgomery & Montgomery, and T. M. Honan, all of Seymour, for appellee.

MYERS, J.

This was an action by appellee against appellant to recover damages for personal injuries for which appellant was alleged to be responsible. The complaint was in two paragraphs. A general denial to each of those paragraphs formed the issue submitted to a jury for trial which resulted in a verdict and judgment in favor of appellee for $8,000. Appellant has assigned, and relies on alleged errors of the court: (1) In overruling its motion to make such each paragraph of the complaint more specific; (2) in overruling its demurrer to each paragraph of the complaint for want of facts, and (3) in overruling its motion for a new trial.

The first paragraph of the complaint is based upon the Employers' Liability Act (Acts 1911, p. 145; section 8020a et seq., Burns' 1914). From this paragraph it appears that on October 24, 1917, appellant, an Indiana corporation employing more than five persons, was engaged in operating a steam railroad through the county of Jennings and other counties of this state. On the date stated it operated a freight train on its line of road with one Ed Jackson as conductor in charge thereof, which train, in one of its cars, carried a machine weighing about 2,000 pounds, and known as an ensilage cutter. This machine was to be unloaded by Jackson, as such conductor, at the town of Commiskey, Jennings county, the place of its consignment, and where appellant maintained a depot and platform, a main track, a side track, and a loading track. Jackson and his only assistants, three persons employed as brakemen on the train, by reason of the great weight of the machine, were unable to unload it safely. Thereupon Jackson requested appellee to assist him. In obedience to this request, and not otherwise, appellee thereupon entered into the work, and while he was thus engaged, and in the exercise of due care, one of the planks then in use in unloading the machine broke, and the machine fell upon him, seriously and permanently injuring him. The negligence charged was: Failing and omitting to provide and furnish men sufficient to unload the machine; failing to furnish safe and suitable appliances with which to perform the work; failing to unload the machine from the car to the platform; failing to place the car on the loading track and then unloading the machine on the ground to the east thereof; attempting to unload the machine from the car on the switch to the ground east of the loading track by the use of two green planks 10 or 12 feet in length; and failing to inspect, test, or support the planks so used.

The second paragraph proceeds upon the theory of an action at common law, and in substance alleges that appellee was a one-seventh owner of the machine, and as such owner*860was present to receive the same, and who, upon the request of Jackson as conductor, undertook to assist in unloading it. The negligence charged is the same as that charged in the first paragraph.

[1] We will first give attention to the motion to make each paragraph of the complaint more specific. It is apparent from the nature and character of the facts called for by the motion that appellant was fully cognizant of all of them, or at least its position for knowing them was superior to that of appellee. Hence, if the complaint was otherwise sufficient to fully and definitely advise appellant of the case it was required to meet, and we so hold, then the court's ruling in this regard was not erroneous. Haskell & Barker Car Co. v. Trzop (Ind. Sup.) 128 N. E. 401;Haskell & Barker Car Co. v. Logermann (Ind. App.) 123 N. E. 818;Thos. Madden, Son & Co. v. Wilcox, 174 Ind. 657, 91 N. E. 933;Knickerbocker Ice Co. v. Gray, 171 Ind. 395, 84 N. E. 341;Pittsburgh, etc., R. Co. v. Simons, 168 Ind. 333, 79 N. E. 911;St. Louis, etc., R. Co. v. Brantley, 168 Ala. 579, 53 South. 305.

[2] In considering the demurrer to the complaint it may be said that each paragraph thereof is grounded upon negligence. Hence each paragraph, in order to withstand the objections lodged against it, must exhibit facts showing the existence of a duty on the part of defendant to protect plaintiff from the injury of which he complains, a failure of defendant to perform that duty, and that such failure was the proximate cause of the injury. In respect to these essential elements to constitute negligence, appellant insists that neither of these paragraphs discloses a relation between it and appellee whereby it is charged with any duty to appellee other than not to willfully injure him.

The first paragraph of the complaint proceeded upon the theory that Jackson, as conductor in charge of appellant's train and of its work of unloading the ensilage cutter, was authorized to employ assistants, in that a necessity existed for assistance to do the work safely; that appellant, in the activities of unloading the machine, was represented by Jackson, at whose request appellee engaged in the work, thus entitling him to the same protection afforded other servants of appellant.

[3] While the facts relied on by appellee in this paragraph as a basis for recovery present, in form, a new question to this court, yet the decision thereof does not require that we invoke a new principle. Generally speaking, it is true the master is not bound nor is he under any duty to those who perform services for him at the request of a servant engaged to do a given work, other than not to willfully injure him. Obviously this rule ordinarily must obtain; for, if it were otherwise, the master might be involved in risk and responsibility imposed by the act of another without his authority or consent.

[4] However this may be, the outstanding facts of this paragraph take this case without that rule and within the rule permitting a servant to bind his master in case of some unforeseen contingency or existing emergency. It may be conceded that Jackson had no general authority to employ or discharge assistants, but, from all the facts and circumstances here shown, Jackson, in the performance of his duty of unloading the machine, represented appellant. It also appears that appellant failed to furnish him sufficient man power and appliances reasonably necessary for him to accomplish the work safely. It may be argued with much force that an emergency employee is not in the employ of the master in a sense to create the relation of master and servant, but, when it appears that by reason of some unforeseen contingency or existing emergency reasonably requiring temporary assistance to do work safely, the servant in charge thereof as the representative of the master in that particular may employ temporary assistants, as in this case, and his action in that regard will bind the master on the principle of implied authority so to do, the person thus employed thereby, for the time, is entitled to the same protection as is the servant or agent upon whose request he rendered the assistance, even though he may not be entitled to recover wages. Aga v. Herbach, 127 Iowa, 144, 102 N. W. 833, 109 Am. St. Rep. 377, 4 Ann. Cas. 441;St. Louis & S. F. R. Co. v. Bagwell, 33 Okl. 189, 124 Pac. 320, 40 L. R. A. (N. S.) 1180;Georgia Pacific Ry. Co. v. Propst, 83 Ala. 518, 525, 3 South. 764;W. H. Neill Co. v. Rumpf, 148 Ky. 810, 147 S. W. 910, L. R. A. 1917C, 1199;Sloan v. Central Iowa Ry. Co., 62 Iowa, 728, 736, 16 N. W. 331; Railroad v. Ginley, 100 Tenn. 472, 45 S. W. 348; Street Railway Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333, 54 Am. Rep. 803.

The implied authority of a railroad conductor to employ a third person in case of a temporary existing emergency-a physician for an injured brakeman-has been considered and affirmed by this court. Terre Haute, etc., R. R. Co. v. McMurray, 98 Ind. 358, 49 Am. Rep. 752;Terre Haute, etc., R. R. Co. v. Brown, 107 Ind. 336, 8 N. E. 218;Louisville, etc., Ry. Co. v. Smith, 121 Ind. 353, 22 N. E. 775, 6 L. R. A. 320. While the emergency in these cases was exceedingly potent, yet they recognize the principle supporting the cases above cited from other jurisdictions.

At the time appellee received his alleged injuries Jackson was in charge of the train and its crew. He was seeking to accomplish *861an end-the unloading of the machine- which was within the scope of his alleged employment. So it is said:

“Where a servant is engaged in accomplishing an end which is within the scope of his employment, and while so engaged adopts means reasonably intended and directed to the end, which result in injuries to another, the master is answerable for the consequences, regardless of the motive which induced the adoption of the means; and this, too, even though the means employed were outside of his authority, and against the express orders of the master.” Pittsburgh, etc., Ry. Co. v. Kirk, 102 Ind. 399, 402, 1 N. E. 849, 852, 52 Am. Rep. 675.

When appellee accepted Jackson's request and entered upon the work, he had the right to expect that Jackson, as the representative of appellant, would use ordinary care for his safety, and certainly so in so far as he might be affected by the use of appliances furnished. The fact that there may have been other and more safe ways and means of handling the machine will not shield appellant from the negligence here charged, for it was appellant, through Jackson, and not appellee, who chose the place and adopted the appliances and the manner of doing the work.

The second paragraph, among other facts, states that appe...