Baltimore & O.S.W. Ry. Co. v. Read

Citation62 N.E. 488,158 Ind. 25
PartiesBALTIMORE & O. S. W. RY. CO. v. READ.
Decision Date17 January 1902
CourtSupreme Court of Indiana


Appeal from circuit court, Pike county; E. A. Ely, Judge.

Action by Clement W. Read against the Baltimore & Ohio Southwestern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Gardiner & Gardiner and E. W. Strong, for appellant. C. K. Thorp, for appellee.


This action was commenced by appellee in the Daviess circuit court to recover damages for personal injuries sustained. The cause was thereafter venued to the Pike circuit court, where a trial by a jury resulted in a verdict awarding appellee $15,000; and, over appellant's motion for a new trial, judgment was rendered thereon against the railway company. From this judgment the company appeals, and assigns as errors (1) that the court erred in overruling its demurrer to the complaint; (2) in sustaining the demurrer of appellee to the second paragraph of answer; (3) in denying a motion for a new trial. Under the averments of the complaint, the following facts are shown: The defendant (appellant herein) is a railroad corporation owning and operating a continuous railroad which extends from the city of East St. Louis, in the state of Illinois, into and through Daviess county, in the state of Indiana, on to the city of Cincinnati, in the state of Ohio. The plaintiff was at the time of the accident, and at the time he instituted his action, a resident of the state of Indiana. On June 8, 1897, he was a servant of the defendant, engaged in its employ as a brakeman on a freight train which was being operated and run over defendant's said road from the town of Flora, in the state of Illinois, into and through Daviess county, in the state of Indiana. On said day, at the station of Clay City, in the state of Illinois, while the plaintiff was assisting in the operation and running of said freight train as such brakeman, it became and was his duty to assist in making what is denominated and known as a running or flying switch; and while so engaged he was, without any fault or negligence on his part, jerked and thrown under a moving car, which ran over and crushed one of his legs, and thereby the amputation of said limb was rendered necessary. The accident in question is alleged to have been caused by the violent and sudden start and speed of the engine attached to the train, which engine was in charge of, and was being operated by, one Michael Griffin, a locomotive engineer then and there in the service and employ of the defendant. The plaintiff in his complaint charges the accident which occurred at Clay City, Ill., and the injury resulting therefrom, to be wholly due to the negligence of Griffin, the engineer, in the operation and management of said engine at the said time and place.

The lower court adjudged the complaint to be sufficient on demurrer. The complaint, as we have shown, discloses that the accident by which appellee was injured occurred in the state of Illinois. Consequently if he has a right of action against appellant, such right arose under the laws of the latter state. The facts conclusively show that appellee and the engineer to whose negligence the cause of the injury is imputed were, under the circumstances, at the time of the accident, nothing more than fellow servants of each other,-both in the service of appellant, their common master. He does not profess by his complaint to base his cause of action on any statute of the state of Illinois. The rule of the common law which asserts that the master is not liable in an action by one of his servants for an injury sustained through the negligence of a fellow servant is a familiar one. When tested by this rule of the common law as it prevails and is enforced in this state by our decisions, the complaint in question does not state a cause of action against appellant. We are bound to presume that the same common-law rule as recognized and enforced in this jurisdiction obtains in the state of Illinois, and is enforced by the highest court thereof in like manner as we enforce it, until the contrary is shown. Hence it must be held that, under the laws of the state in which the injury complained of was inflicted, the complaint does not state or disclose a right of action against appellant. Unless the negligent act of appellant's servant to which appellee imputes his injury, which act, as shown, occurred wholly in the state of Illinois, created a liability or right of action in that state against appellant in favor of appellee, no such right or liability can be asserted to exist elsewhere. Certainly, if no right of action existed in that state in his favor, he could carry no right of action with him by coming into the state of Indiana, and instituting a suit against appellant in the courts of the latter state. This rule of the law is universally affirmed and settled. Buckles v. Ellers, 72 Ind. 220, 37 Am. Rep. 156;Burns v. Railroad Co., 113 Ind. 169, 15 N. E. 230. In the latter case this court, on page 176, 113 Ind., and page 233, 15 N. E., said: “All the cases agree that, whatever the law of the forum may be, the plaintiff's case must stand, if at all, so far as his right of action is concerned, upon the law of the place where the injury occurred. Hyde v. Railway Co., 61 Iowa, 441, 16 N. W. 351, 47 Am. Rep. 820;State v. Pittsburgh & C. R. Co., 45 Md. 41. *** Unless the alleged wrong was actionable in the jurisdiction in which it was committed, there is no cause of action which can be carried to and asserted in any other jurisdiction,”-citing numerous authorities. As further supporting this proposition, see Railroad Co. v. Carroll, 97 Ala. 126, 11 South. 803, 18 L. R. A. 433, 38 Am. St. Rep. 163, and the many authorities therein cited on page 131, 97 Ala., and page 805, 11 South. 18 L. R. A. 433, 38 Am. St. Rep. 163;Davis v. Railroad Co., 143 Mass. 301, 9 N. E. 815, 58 Am. Rep. 138;Alexander v. Pennsylvania Co., 48 Ohio St. 623, 30 N. E. 69; Railway Co. v. Lewis, 89 Tenn. 235, 14 S. W. 603;Debevoise v. Railroad Co., 98 N. Y. 377, 50 Am. Rep. 683; Railroad Co. v. Whitlow's Adm'r (Ky.) 43 S. W. 711, 41 L. R. A. 614;Hamilton v. Railroad Co., 39 Kan. 56, 18 Pac. 57;Smith v. Condry, 1 How. 28, 11 L. Ed. 35;Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, and cases there cited; Story, Confl. Laws, § 609. The rule that if the law of the state or jurisdiction where the wrong is committed, when applied to the case, does not give a right of action against the wrongdoer, then no action can be sustained, is so well established that we may dismiss the question without further consideration.

Counsel for appellee, however, in their argument in support of the complaint, seek to apply the provisions of the fourth clause of section 1 of the employers' liability act, passed by the legislature of this state in 1893. Acts 1893, p. 294 (sections 7083-7087, Burns' Rev. St.). The first section of this act declares “that every railroad or other corporation, except municipal, operating in this state, shall be liable in damages for personal injury suffered by any employé while in its service, the employé so injured being in the exercise of due care and diligence, in the following cases: *** Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, round-house, locomotive engine, or train upon a railway, or where such in jury was caused by the negligence of any person, co-employé, or fellow servant engaged in the same common service in any of the several departments of the service of any such corporation, the said person, co-employé, or fellow servant, at the time acting in the place, and performing the duty of the corporation in that behalf, and the person so injured, obeying or conforming to the order of some superior at the time of such injury, having authority to direct; but nothing herein shall be construed to abridge the liability of the corporation under existing laws.” (Our italics.) By that part of the clause which we have italicized a liability against a railroad corporation is created in this state, where previous to the enactment of this statute none existed under the common-law rule. We cannot presume that the legislature intended to exceed its territorial jurisdiction or power by extending the operation and effect of this statute so as to create a right of action in favor of the servant against the railroad corporation for an injury sustained in a sister state through the negligence of a fellow servant, where no such right under the laws of the latter state existed. That a statute of this state prescribing a penalty or giving a right of...

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