Capper v. The Louisville, Evansville and St. Louis Railway Company

• Decision Date: 17 October 1885
• Docket Number: 11,504
• Citation: 2 N.E. 749,103 Ind. 305
• Parties: Capper v. The Louisville, Evansville and St. Louis Railway Company
• Court: Indiana Supreme Court

2 N.E. 749

103 Ind. 305

Capper v. The Louisville, Evansville and St. Louis Railway Company

No. 11,504

Supreme Court of Indiana

October 17, 1885

From the Floyd Circuit Court.

Judgment affirmed.

C. L Jewett, for appellant.

A Dowling, for appellee.

OPINION

Elliott, J.

The material allegations of the appellant's complaint are these: "Prior to the 7th day of February, 1883, the plaintiff, being a laborer, entered into the service of the defendant to work and assist at removing loose and projecting pieces of stone from the sides and roof of a tunnel, and to place in the tunnel timbers and frames for bracing and supporting the sides and roof thereof, in the doing of all of which the plaintiff acted under the command and direction of one James O'Hara, who was the person appointed by the defendant as the general superintendent of the said work and the laborers engaged therein. On the 7th day of February, 1883, while engaged about his work at the said tunnel, he, with other laborers, was directed and ordered by James O'Hara, under a threat of discharge if he disobeyed, to get upon a freight train of the defendant's and go to another tunnel near Georgetown to work. The freight train was not stopped to allow the plaintiff to embark thereon, but was running slowly, so that plaintiff might safely have gone upon the steps and into the car, but for the negligence and carelessness of the defendant's servants who were in charge of the said train. James O'Hara directed the plaintiff to get upon said train while it was moving slowly as aforesaid, and the plaintiff, in obedience to said order, and using due care to prevent accident or injury, attempted so to do, and for that purpose took hold of the iron rod, or hand-rail, at the rear end of the car into which he was directed to go, and started to get upon the steps of said car, but the plaintiff says that at that instant the engineer and servants of the defendant in charge of the engine which was moving said car along the track, without warning the plaintiff of their intention so to do, violently forced said car forward with great violence, causing the same to violently jerk the plaintiff, by the force and violence of which his hold was loosened from the iron rod, and he was thrown under the car and his foot run over and crushed."

The appellee contends that the trial court rightly decided that the complaint was bad, for the reason that it appears that the injury to the plaintiff was caused by the negligence of a fellow servant. The appellant, on the other hand, contends that the ruling of the trial court was wrong, because the servants of the appellee, whose negligence caused the injury, were not in the same general line of employment.

The allegations of the complaint do not bring the case within the cases holding that where a servant is transferred by command of his superior to a line of service different from that which he undertook when he entered the service of the master, he may maintain an action against the master for injuries received while engaged in the work to which he was transferred. Such decisions as those in Lalor v. Chicago, etc., R. R. Co., 52 Ill. 401 (4 Am. Rep. 616), Union Pacific R. R. Co. v. Fort, 84 U.S. 553, 17 Wall. 553, Chicago, etc., R. W. Co. v. Bayfield, 37 Mich. 205, Hurst v. Chicago, etc., R. R. Co., 49 Iowa 76, and Mann v. Oriental Print Works, 11 R.I. 152, do not, in any event, rule this case, and we need not, and we do not, enter upon any examination of the doctrine which they maintain. The complaint before us does not aver that the appellant engaged in the service of the company to do a particular work, or pursue a designated line of service, from which he was wrongfully transferred. It does not appear that the command of the superintendent was not one which the duties of the appellant's employment required him to obey. For anything that appears, the command to go from one tunnel to another was one which the superintendent had a right to give, and to which the engagement of the appellant required him to yield obedience. It is true that the complaint avers that the command of the superintendent was given under a threat of discharge, but this is by no means equivalent to averring that the command took the appellant out of the general line of his employment, or that it was one to which he was not bound to submit under his engagement in the service of the company. It can not be presumed that either the master or the superior agent violated a duty, and disregarded the rights of the appellant. A plaintiff who founds a cause of action upon a breach of duty must state such facts as show the duty and its violation.

It may now be taken as settled in this State, that where a master delegates duties which the law imposes upon him to an agent, the agent, whatever his rank, in performing those duties, acts as the master. Indiana Car Co. v. Parker, 100 Ind. 181, and authorities cited; Atlas Engine Works v. Randall, 100 Ind. 293 (50 Am. Rep. 798).

The case relied on by the appellant, Ohio, etc., R. W Co. v. Collarn, 73 Ind. 261 (38 Am. Rep. 134), rests on this principle. In that case the railroad company was held liable on the ground that the master mechanic, whose negligent breach of duty caused the injury, was not a fellow servant, but, in the discharge of the duties cast upon him, was acting for the master, and stood in his place. The complaint under examination does not state facts showing that the superintendent O'Hara...