Bennett v. Evansville & T.H.R. Co.
| Decision Date | 28 November 1911 |
| Docket Number | No. 21,435.,21,435. |
| Citation | 177 Ind. 463,96 N.E. 700 |
| Court | Indiana Supreme Court |
| Parties | BENNETT v. EVANSVILLE & T. H. R. CO. et al. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Greene County; Chas. E. Henderson, Judge.
Action by Lulu Bennett, administratrix, against the Evansville & Terre Haute Railroad Company and another. From a judgment sustaining a demurrer to the complaint, plaintiff appealed, and the cause was transferred from the Appellate Court with its recommendation (95 N. E. 594) under Burns' Ann. St. 1908, § 1429. Affirmed.William L. Slinkard, for appellant. John E. Iglehart, Edwin Taylor, E. H. Iglehart, and John T. & W. H. Hays, for appellees.
Appellant instituted an action against appellees for damages for alleged negligence in the killing of her husband. The complaint is in one paragraph, the material portion of which, so far as the question before us is concerned, is as follows: Appellant's decedent was the employé of defendants. That he was employed as a member of a bridge gang on the Evansville & Indianapolis division of the defendants' road. That one Clark was the boss, or foreman of the gang. That Clark had under him a number of men, naming them. That on the 4th day of July, 1907, the defendants sent out an extra work train for the purpose of delivering piling along the road. That the piling was about 35 feet long, and about 12 to 14 inches in diameter. That the train was run to a point near Doans Creek, and the decedent was then and there ordered by the boss, with others, to unload the piling with cant hooks and crowbars. That the pilings were unloaded until there were only two left, one upon the top of the other, and that the top piling was fast. That the pilings were unloaded off of the east side of the car, and rolled down an embankment to the east. That in unloading said car the defendants should have provided skids, long pieces of timber whereby one end would rest upon the ground and the other end upon the edge of the car, for the purpose of rolling the pilings off of the car to the place where they were desired. That, for the purpose of unloading the pilings in safety, defendants should have furnished checks, or stops, so that, when the piling was rolled from off the under piling on the west side, the same could have been stopped before the rolling off across on the east side. That standards should have been placed on the east side of the car, in order to have stopped the piling when once started to roll from off the top of the lower piling on the west side of the car, so that the same could have been unloaded in safety, without rolling off onto the decedent. That the defendants, by their boss, owed the plaintiff's decedent a further duty not to order the decedent into a dangerous place. That defendants, by their boss, owed the plaintiff's decedent a duty not to carelessly and negligently command the decedent to enter a dangerous and hazardous place. That the defendants, by their boss, owed the decedent a duty that, after ordering the decedent into such dangerous and hazardous place, they should have immediately ordered him out of such dangerous and hazardous place.
The complaint further alleges that it was the duty of the decedent to obey the orders and commands of the boss, and he was compelled to, and did do so, and that it was the duty of the defendants to conduct their business in a safe and prudent manner, so that the injury might not come to the decedent, and it is alleged as to each of these alleged duties: That it was negligently and carelessly omitted, and that defendants, by their boss, negligently and carelessly ordered plaintiff's decedent, and directed and negligently commanded him to go upon the car about the center thereof on the west side of the piling, and commanded him at the point to assist in starting the piling to roll, which piling was then and there fast, and hard to break loose, and the foreman knew it. That the boss placed him in the center of the car in front of the piling where it was perilous and dangerous. That after being negligently ordered and directed by the boss into the middle of the car, and before the piling started to roll, the danger became imminent and perilous, and the defendants, by their boss, then and there carelessly and negligently failed to order him out of said dangerous and hazardous place. That after ordering plaintiff's decedent into the dangerous place, and failing to order him out of the dangerous place, the boss commanded the decedent, with others, to start piling to rolling at a time when the defendants, by the boss, knew that the piling was stuck, and tight, and hard to move, and would require great force to start it, and at a time when the defendants, by their boss, knew that, after being started with great force and momentum, it would roll off of the car, and without providing any skids, standards, checks, or stops, negligently ordered the plaintiff's decedent to the middle of the car, and in front of the way the piling would roll, and did roll. That decedent in obedience to the orders of the defendants went to the middle of the car, east of the piling, and while decedent was in front of the piling, the defendants, by their boss, ordered the piling to be rolled off of the car to the east. That the piling was then and there, by the orders of defendants' boss, and at a time when decedent was in the middle of the car and in front of the piling, carelessly and negligently started to roll to the east, and, without any fault or negligence on the part of the decedent, the piling rolled to the east; the decedent keeping out of the way, using due care and caution, until he came to the edge of the car, when the piling then and there rolled very fast, following him with great speed, and the decedent jumped from the east side of the car, and the piling, on account of the carelessness and negligence of the defendants in not providing any stops, and on account of the defendants carelessly and negligently failing to provide any standards on the east side, and carelessly and negligently failing to furnish any skids to keep the same from off the body of the decedent, and on account of the defendants, by the boss, carelessly and negligently ordering the decedent into the dangerous and hazardous place, and negligently and carelessly starting the piling to roll while the decedent was in front of it, and negligently and carelessly placing him in the dangerous place, then negligently not ordering him out of the dangerous place, and because the defendants ordered the unloading of the piling in a dangerous manner, and negligently and carelessly placed the decedent in a dangerous place, and after so placing him in the dangerous place, by the boss, negligently and carelessly failed to warn and notify the decedent of his danger, and wholly without any fault or negligence on the part of the decedent, but wholly on account of the fault and negligence of the defendants, by the boss, the piling then and there rolled off of the car, striking the decedent across the back and shoulders, all of which was without any fault or negligence on his part, but wholly the fault and negligence of the defendants, by their boss, and by the piling striking and falling upon the body of the decedent he was then and there mortally injured,...
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