Bowles v. Indiana Ry. Co.

• Decision Date: 26 November 1901
• Citation: 62 N.E. 94,27 Ind.App. 672
• Parties: BOWLES v. INDIANA RY. CO.
• Court: Indiana Appellate Court

27 Ind.App. 672

62 N.E. 94

BOWLES

v.INDIANA RY. CO.

Appellate Court of Indiana, Division No. 1.

Nov. 26, 1901.

Appeal from circuit court, Elkhart county; H. D. Wilson, Judge.

Action by Curtis N. Bowles against the Indiana Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

H. C. Drake and O. M. Conley, for appellant. Stonex & Black, for appellee.

BLACK, C. J.

The complaint of the appellant, a demurrer to which for want of sufficient facts was sustained, showed that he was in the employment of the appellee constructing a trolley wire line, being one of a number of workmen so engaged; that the appellee furnished a team and wagon, which was used for the purpose of transporting the appellant and his fellow workmen from Elkhart to their work on the line, and of transporting them back from their work to get their dinners, and at night when work had ceased, which team had been used for such purpose and transported the appellant and the other workmen to and from this work for two months before the 11th of September, 1899; that the team “was fractious, and what is called a runaway team,” of which the appellee had knowledge at all times, and it had run away several times before that date, all of which was well known to the appellee, whereupon the appellee, because of his knowledge aforesaid,hired a man as an expert teamster to drive and control the team in said work; that on the day above mentioned “said expert teamster” was in charge and driving the team, and the appellee represented to the appellant and his fellow workmen that the team, handled by an expert driver, was perfectly safe in his charge, and that the appellant and his comrades would not incur any danger whatever in accepting such transportation by the team; that appellant believed that the team so managed and so handled as represented by the appellee was safe, and would not run away; that on the day aforesaid the appellant and the other men were working on said line for the appellee, “and under and by virtue of said orders” were carried by said team, said driver in charge, to and upon the line, to continue their work, and were instructed that the team would return at dinner time, and that the appellant and the others would be transported by it to eat their dinner; that the team handled by said driver did go to the place where the appellant was at work, and took him and the others to a place where there was water, where they could eat their dinner; that after dinner, on the way back to work, the team ran away with the wagon and the appellant and others, with the expert teamster driving; that he partially succeeded in stopping the team, and when it was nearly stopped the appellant attempted to get out of the wagon, whereupon the team again began to run, and by a sudden jerk, while he was so attempting, and by the sudden attempt to run again, the team threw this appellant upon the ground, and in the fall he broke his collar bone, etc., to his damage, etc.

In such a case it may be an important matter to determine whether the status of the person for whose injury the action is prosecuted was that of a passenger, being carried by the defendant either for hire or gratuitously, or was that of a servant of the defendant. If a passenger, the defendant would be under obligation to exercise the highest care, and would be liable for injury through slight negligence, and the maxim respondeat superior would be applicable; but, if a servant, the master would be under obligation to exercise only ordinary care, and would be liable for injury through the want of it, and, if the injury accrued from one of the ordinary risks of the service, the hazard of which was assumed by the injured person as an employé, there could be no recovery. In the case before us the conveyance of the plaintiff and his fellow workmen by the employer was for the mutual convenience of the parties, no compensation being rendered or required. The transportation of the laborers was one of the means by which the employer procured the doing of the work. In view of the migratory character of the service, such transportation facilitated the prosecution of the work, and was beneficial to both employer and employés. It was, by the conduct of the parties, if not by their express agreement, an ingredient and instrumentality of the employment. It can hardly be said that the plaintiff was not in the employment of the defendant, while so riding, in both a legal and popular sense. Such conveyance seems to have been contemplated by the parties as a matter within the regular course of the employment. It is true that the plaintiff's service did not include the management or care of the vehicle, or of the horses drawing it, but it included the riding in the conveyance furnished by the employer as a means of prosecuting the work in the manner contemplated by the parties to the contract of service. It was arranged between the employer and the employé that the latter would thus go and come with his fellow workmen, thereby expediting the work with greater convenience for all concerned. The employé was doing something for the employer when and by riding in the mode...