Bennett v. Evansville & Terre Haute Railroad Company
| Decision Date | 28 November 1911 |
| Docket Number | 21,485 |
| Parties | Bennett, Administratrix, v. Evansville and Terre Haute Railroad Company et al |
| Court | Indiana Supreme Court |
Rehearing Denied May 8, 1912.
From Greene Circuit Court; Charles E. Henderson, Judge.
Action by Lula Bennett, Administratrix of the estate of Emery C Bennett, deceased, against the Evansville and Terre Haute Railroad Company and another. From a judgment for defendants the plaintiff appeals. (Transferred from the Appellate Court with its recommendations under § 1429 Burns 1908, Acts 1893 p. 29.)
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: That appellant's decedent was the employe of defendants, that he was employed as a member of a bridge gang on the Evansville and Indianapolis division of defendant's road; that one Clark was the boss or foreman of the gang, and had under him a number of men, naming them; that on July 4, 1907, defendants sent out an extra work train for the purpose of delivering piling along the road; that the piling was about thirty-five feet long, and from twelve to fourteen inches in diameter; that the train was run to a point near Doans Creek, and that decedent was then and there ordered by the boss, with others, to unload the piling with cant-hooks and crow-bars; that the piling was unloaded until there were only two left, one on the top of the other, and that the top piling was fast; that the piling was unloaded off the east side of the car, and rolled down an embankment to the east; that in unloading said car defendants should have provided skids--long pieces of timber whereby one end would rest on the ground and the other end on the edge of the car--for the purpose of rolling the piling off the car to the place where it was desired; that for the purpose of unloading the piling in safety, defendants should have furnished checks, or stops, so that when each piling was rolled from off the under piling on the west side, it could have been stopped before 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 decedent; that defendants, by their boss, owed plaintiff's decedent a further duty not to order him into a dangerous place; that defendants, by their boss, owed plaintiff's decedent a duty not carelessly and negligently to command him to enter a dangerous and hazardous place; that defendants, by their boss, owed decedent a duty, that after ordering him into such dangerous and hazardous place, they should immediately have ordered him out of such dangerous and hazardous place.
The complaint further alleges that it was the duty of 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 defendants to conduct their business in a safe and prudent manner, so that injury might not come to 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 at about the center thereof, on the west side of the piling, and commanded him at that point to assist in starting the piling to rolling, 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 to go into the middle of the car, and before the piling started to roll, the danger became imminent, and defendants, by their boss, then and there carelessly and negligently failed to order decedent 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 decedent, with others, to start the piling to rolling, at a time when 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 defendants, by their boss, knew that after being started with great force and momentum, it would roll off the car, and, without providing any skids, standards, checks or stops, negligently ordered 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 defendants, went to the middle of the car, east of the piling, and while decedent was in front of the piling, defendants, by their boss, ordered the piling to be rolled off 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 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 decedent jumped from the east side of the car, and the piling, on account of the carelessness and negligence of defendants in not providing any stops, and on account of 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 decedent, and on account of defendants, by their boss, carelessly and negligently ordering decedent into the dangerous and hazardous place, and negligently and carelessly starting the piling to rolling while 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 defendants ordered the unloading of the piling in a dangerous manner, and negligently and carelessly placed 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 decedent, but wholly on account of the fault and negligence of defendants, by the boss, the piling then and there rolled off the car, striking 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 defendants, by their boss, and by the piling striking and falling upon the body of decedent, he was then and there mortally injured, from which injuries he then and there died.
A demurrer was sustained to this complaint, from which ruling appellant appeals. Defendants filed separate demurrers to the complaint for insufficiency of facts. The order-book entry of the ruling on the demurrers and the exception is as follows: "The court now sustains the demurrers to the complaint, to which ruling of the court the plaintiff at the time excepts and plaintiff now refuses to plead further," etc.
The errors assigned are "that the court erred in sustaining the appellees's demurrers to the appellant's complaint," and "that the court erred in sustaining each demurrer of each appellee to the appellant's complaint." This was necessarily a ruling as to each demurrer and an exception to the...
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