Chicago & Erie Railroad Company v. Lain

• Decision Date: 07 February 1908
• Docket Number: 20,978
• Citation: 83 N.E. 632,170 Ind. 84
• Court: Indiana Supreme Court
• Parties: Chicago & Erie Railroad Company v. Lain

83 N.E. 632

170 Ind. 84

Chicago & Erie Railroad Company v. Lain

No. 20,978

Supreme Court of Indiana

February 7, 1908

From Fulton Circuit Court; John C. Nye, Special Judge.

Action by Henry Leroy Lain against the Chicago & Erie Railroad Company. From a judgment on a verdict for plaintiff for $ 14,771.50, defendant appeals. Appealed from Appellate Court under subd. 3, 1394 Burns 1908, Acts 1901, p. 565. 10.

Reversed.

W. O Johnson, Holman & Stephenson, C. C. Campbell, Henry Steis, L. J. Hackney and U. Z. Wiley, for appellant.

George Burson, F. M. Trissal, I. Conner and S. Bybee, for appellee.

OPINION

Monks, C. J.

Action by appellee for personal injuries. The complaint set out in the transcript is in five paragraphs. The third and fifth paragraphs were withdrawn, and a demurrer "for want of facts" to the other paragraphs was overruled. Trial and judgment in favor of appellee.

The errors assigned call in question the action of the court in overruling the demurrer to each of the paragraphs one, two and four of the complaint.

The cause was tried by the court and the parties upon the theory that the first paragraph of the complaint was under the second clause, and the second and fourth paragraphs were under the fourth clause, of section one of the employers' liability act (Acts 1893, p. 294, S 7083 Burns 1901).

The part of said act necessary to be considered in the determination of this case reads as follows: "That every railroad * * * operating in this State, shall be liable for damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: * * * Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform. * * * Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any * * * locomotive engine or train upon a railway."

It appears from the first paragraph of the complaint that appellee was engaged to work for appellant as a "yard and bridge man;" that one Eggleston was foreman of the switch yards, with authority to direct appellee, and that he directed him "to go to the end of one of the freight-cars, used in hauling bridge timbers, standing on one of the switch-tracks, and push it to another place on the track on which it was standing." It is not averred that the order was negligent, nor are any facts alleged from which the court can say that it was a negligent order.

The negligence attempted to be charged against said foreman in said paragraph was that he "negligently and carelessly, and without any warning to the plaintiff, and without placing or sending out any flag or signal, and without giving any signal to warn the person in charge of the switching engine not to come onto the track where the plaintiff was at work, or to slacken the speed of said engine and move slowly and cautiously on said track, and without warning said person that the plaintiff was at the place where he was directed to go, permitted and directed the locomotive engine belonging to defendant and operated by its employes to come onto said track at a careless rate of speed, with a car attached, and allowed the men in charge thereof carelessly to detach said car from said engine, and, without any notice or warning, to cause said detached car to run with rapidity and force onto said switch and against and upon plaintiff."

The general rule is that, if a person seeks to maintain an action under the employers' liability act, he must state specially all the facts necessary to bring himself within its provisions, and thus enable the court to judge whether he has a cause of action under the statute. American Rolling Mill Co. v. Hullinger (1904), 161 Ind. 673, 687, 67 N.E. 986, and cases cited; Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 96, 102 Am. St. 185, 69 N.E. 669, and cases cited; Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 297, 75 N.E. 277. Said first paragraph is insufficient for the reason that it fails to show that a duty devolved upon said foreman to exercise care for the safety of appellee.

In Muncie Pulp Co. v. Davis (1904), 162 Ind. 558, 562, 70 N.E. 875, this court said: "'In every case involving actionable negligence, there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant. When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad or the evidence insufficient.' See, also, Evansville, etc., R. Co. v. Griffin [1885], 100 Ind. 221, 50 Am. Rep. 783; Louisville, etc., R. Co. v. Sandford [1889], 117 Ind. 265, 19 N.E. 770; Daugherty v. Herzog [1896], 145 Ind. 255, 32 L.R.A. 837, 57 Am. St. 204, 44 N.E. 457; American Rolling Mill Co. v. Hullinger [1904], 161 Ind. 673, 67 N.E. 986; Black, Proof and Pl. in Accident Cas., S 138. In pleading the characterization of an act or omission as negligent causes that word to take on a technical significance, but such a charge will not supply averments of fact from which the existence of a duty to exercise care is shown to have existed. It cannot be said to be a proposition of law that the giving of a proper command by a superior servant in every instance imposes upon him the duty of protecting the servant commanded while the latter is engaged in the execution of the order. See Southern Ind. R. Co. v. Martin [1903], 160 Ind. 280, 66 N.E. 886."

It was said by this court in Pittsburgh, etc., R. Co. v Lightheiser (1904), 163 Ind. 247, 251, 71 N.E. 218: "It is well settled that a complaint for negligence must disclose by proper averments the existence of a duty upon the part of the defendant, or of the person alleged to be negligent, where it is a case of imputed negligence, as, under an employers' liability act, to exercise care toward the person injured. Muncie Pulp Co. v. Davis [1904], 162 Ind. 558, 561-563, 70 N.E. 875; American Rolling Mill Co. v. Hullinger [1904], 161 Ind. 673, 67 N.E. 986; Faris v. Hoberg [1892], 134 Ind. 269, 39 Am. St. 261, 33 N.E. 1028; Louisville, etc., R. Co. v. Sandford [1889], 117 Ind. 265, 19 N.E. 770; Zimmerman v. Baur [1894], 11 Ind.App. 607, 39 N.E. 299. The direct statement that it was the duty of a defendant to do or not to do a certain act is a mere conclusion of law. The rule is that facts must be alleged from which the law will imply the existence of the underlying duty. Indianapolis, etc., Transit Co. v. Foreman [1904], 162 Ind. 85, 69 N.E. 669, and cases cited; Seymour v. Maddox [1851], 16 Q. B. 326; Brown v. Mallett [1848], 5 C. B. 599, 57 Eng. C. L. 598; City of Buffalo v. Holloway [1852], 7 N.Y. 493, 57 Am. Dec. 550; West Chicago St. R. Co. v....