Chicago, Indianapolis & Louisville Railway v. Williams

• Decision Date: 12 December 1906
• Docket Number: 20,845
• Citation: 79 N.E. 442,168 Ind. 276
• Court: Indiana Supreme Court
• Parties: Chicago, Indianapolis & Louisville Railway Company v. Williams, Administratrix

79 N.E. 442

168 Ind. 276

Chicago, Indianapolis & Louisville Railway Company v. Williams, Administratrix

No. 20,845

Supreme Court of Indiana

December 12, 1906

Rehearing Denied March 19, 1907.

From Montgomery Circuit Court; Jere West, Judge.

Action by Minnie F. Williams, as administratrix of the estate of Francis Ora Williams, deceased, against the Chicago Indianapolis & Louisville Railway Company. From a judgment on a verdict for plaintiff for $ 5,000, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

E. C Field, H. R. Kurrie and Thomas & Foley, for appellant.

Clude H. Jones, John D. Murphy and U. C. Stover, for appellee.

OPINION

Montgomery, C. J.

Appellee, as administratrix of the estate of Francis Ora Williams, deceased, brought this action to recover damages for the death of said decedent while in appellant's employ as a brakeman. The complaint originally contained five paragraphs, but appellee voluntarily dismissed the first and third of said paragraphs. Appellant's demurrer, on the ground of insufficient facts, was overruled to the amended second, fourth, and fifth paragraphs of complaint, and it answered by general denial. A trial by jury resulted in a verdict for appellee. The jury were required to return answers to special interrogatories with their general verdict, upon which appellant unsuccessfully moved for judgment in its favor. Judgment was entered upon the general verdict, and appellant's motion for a new trial was overruled.

It is charged that the court below erred in overruling demurrers to each of the amended paragraphs of complaint, in permitting the complaint to be amended during the trial, in overruling appellant's motion for judgment upon the interrogatories and the answers of the jury thereto notwithstanding the general verdict, and in overruling appellant's motion for a new trial.

The sufficiency of the amended second paragraph of complaint is vigorously assailed. This paragraph alleged that one Callahan was conductor of a certain train and had the charge and management of the movements of the train, and at the time and place of the accident was acting in the place and performing the duty of appellant corporation in that behalf, and had authority to direct the decedent and the other servants comprising the train crew as to their duties in and about the movement of said train, and in and about switching and making up of trains at the different stations along the line of their run; that Callahan ordered the decedent to couple a car that was standing on a switch at Ladoga, the coupler of which was defective, as described; that decedent attempted to make the coupling in pursuance of the order, but before he had given notice that he was ready Callahan carelessly and negligently gave orders or signals to the engineer in charge of the engine aforesaid to back said train against said car on which decedent was at work, whereby he was crushed and killed; that at the time he was killed he was conforming to the orders of said Callahan, who had charge of said train, and to whose orders he was required to conform.

Appellant's counsel earnestly insist that this paragraph of complaint was founded upon the latter part of the fourth subdivision of section one of the employers' liability act (Acts 1893, p. 294, § 7083 Burns 1901), and that it does not state a cause of action upon the theory of the pleader. In support of this contention it is asserted that the trial court so construed the theory of this paragraph, and charged the jury accordingly. Appellee's counsel answer that at appellant's request the court below gave the jury an instruction treating this paragraph as based upon the second subdivision of said statute. We are not required to pass upon the sufficiency of this paragraph of complaint under either subdivision of said section, since it affirmatively appears that the verdict rests upon the fourth and fifth paragraphs of the complaint, and not upon this one. In answer to the sixty-first interrogatory, the jury found the fact to be that the decedent was not acting at the special order or direction of any one, but only in obedience to the ordinary duties of his employment, at the time and place of the accident resulting in his death. This answer negatives a material averment of the second paragraph of complaint, and takes that paragraph out of consideration in determining the merits of this appeal. Conner v. Andrews Land, etc., Co. (1904), 162 Ind. 338, 345, 70 N.E. 376; Illinois Cent. R. Co. v. Cheek (1899), 152 Ind. 663, 53 N.E. 641; Pittsburgh, etc., R. Co. v. Moore (1899), 152 Ind. 345, 348, 44 L. R. A. 638, 53 N.E. 290.

The amended fourth and fifth paragraphs of complaint are conceded to be alike in theory and in substance. They are founded upon the first part of the fourth subdivision of section one of the employers' liability act (§ 7083, supra). These paragraphs fully and specifically describe the situation and surroundings, and the act of Callahan, the conductor, charged as the negligence proximately causing the death of Williams. The point of the objection can be apprehended from the following quotations from the fourth paragraph, the fifth in this respect being substantially the same: "That at the time said Callahan gave said back-up signal, and at the time said Williams was killed, said Callahan was acting in the line of his duty and within the scope of his employment as conductor of said train, and at said time had charge and control of defendant's said train upon defendant's said line of railway for and in behalf of defendant."

Appellant's learned counsel frankly concede, as they must, that the provisions of the employers' liability act, upon which these paragraphs of complaint are predicated, enlarge the class of vice-principals as it existed at common law. Pittsburgh, etc., R. Co. v. Lightheiser (1907), post, 438; Baltimore, etc., R. Co. v. Little (1897), 149 Ind. 167, 48 N.E. 862; Baltimore, etc., R. Co. v. Reed (1902), 158 Ind. 25, 29, 56 L. R. A. 468, 92 Am. St. 293, 62 N.E. 488.

In the latter case it was expressly declared that, by the provision "that every railroad * * * operating in the State, shall be liable for damages for personal injuries suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence: * * * Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any * * * train upon a railway," a liability was created in this State where previous to the enactment of this statute none existed under the common-law rule.

In the face of this admission, appellant's counsel argue that "it has been uniformly held that the negligence of a vice-principal, for which there is a liability, is negligence in the performance of one of his duties as vice-principal. Not simply the negligence of one who is a vice-principal, nor one who in the act out of which the negligence arises is simply performing the duty of a fellow...