Chicago, Indianapolis & Louisville Railway v. Barker
| Decision Date | 17 January 1908 |
| Docket Number | 21,072 |
| Citation | 83 N.E. 369,169 Ind. 670 |
| Court | Indiana Supreme Court |
| Parties | Chicago, Indianapolis & Louisville Railway Company v. Barker, Administratrix |
From Owen Circuit Court; George W. Grubbs, Special Judge.
Action by Dolly M. Barker, as administratrix of the estate of Albert S. Barker, 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 (See 40 Ind.App. 256) under § 1399 Burns 1908, Acts 1901, p. 565, § 15.
Reversed.
E. C Field, H. R. Kurrie and I. H. Fowler, for appellant.
C. E Thompson and Homer Elliott, for appellee.
Appellant owns and operates a railroad from Chicago to Louisville, through Indiana, and by way of Quincy, Owen county.
At Quincy there is a station-house on the west side and a switch on the east side of the main track. Four hundred fifty feet north of the station is the north connection of the switch with the main track. The switch is operated by a switch-stand located on the west side and about six feet from the west rail of the main track. The switch-stand is eight feet high, and has on top two wings, one painted red and the other white, which serve as targets to signify to approaching trainmen whether the switch is open or closed--the red, when standing at right angles with the main track, indicating danger, or an open switch, and the white, when standing at right angles with the main track, indicating safety, or a closed switch. In the opening or closing of the switch the wings of the stand work automatically, and when in repair cannot mislead. Between the switch-stand and the station-house a country highway crosses the railroad, and on the west side of the main track is a signboard to warn travelers on the highway. In the north end of the station-house is an observation window from which an unobstructed view up the track northward may be had for a long distance. The company also maintains at the station-house a semaphore signal, which is twenty feet high and has on top two blades five feet long, six inches wide, painted white and in colors, and by which device the telegraph operator signals to approaching trainmen any orders he has to deliver, and whether or not the train should be stopped at the station. Said signal is under the care and management of the telegraph operator, who is also the station agent. In approaching Quincy from the north the track is on a heavy down grade. On December 30, 1902, the decedent, Barker, was in the employ of the appellant as a locomotive engineer, and as such had charge of a south-bound, through freight, the running time of which was scheduled at thirty miles an hour, and which, as the same approached Quincy, was running at that rate. There were loaded cars standing on the switch. The switch had been left open, and Barker's train took the siding, collided with the standing train, and he was killed in the wreck which followed. Dolly M. Barker, his widow, qualified as administratrix, and brought this action for the benefit of herself and children.
The foregoing facts are set forth in all the four paragraphs of complaint, to each of which paragraphs a demurrer for insufficiency of facts was overruled and the cause put at issue by the general denial. The case was submitted to a jury which returned a verdict for appellee. With the general verdict were also returned answers to a large number of interrogatories.
The record shows that the only demurrers filed by appellant were addressed to the several paragraphs of the "amended" complaint. These demurrers were overruled, to which rulings exceptions were reserved. In its assignment of errors in this court it is complained that the court below erred in overruling the several demurrers to the "complaint." Upon this showing it is contended by appellee that no question is raised here on the sufficiency of the several paragraphs of the complaint, because the record shows that there was no demurrer filed, and no exceptions reserved to any such pleading. We think otherwise. It further appeared from the record that when the demurrers were presented the only complaint then, theretofore or thereafter on file was the complaint that now appears in the record. There was, and is, therefore, no possible chance for a mistake in the identity of the complaint demurred to. In this respect the record before us is radically different from the records in the cases cited by appellee. All the paragraphs of the complaint relate to the same injury.
Was the first paragraph sufficient? It is first alleged in this paragraph "that it was the duty of the defendant to keep the switch, appliances and mechanical devices attached as a part of the defendant's railroad in good repair, and safe for use by its employes, and that on the day aforesaid the defendant negligently suffered said switch to become, and remain, out of repair, and in an unsafe and dangerous condition in this, to wit: Said defendant, on said December 30, 1902, carelessly and negligently permitted said switch to become unlocked, and so turned open and adjusted as to cause the train on which said Barker was then and there performing his duties as engineer, and which was running at a high rate of speed, to pass from the main track onto the switch and collide with certain heavily-loaded cars standing thereon, whereby said train was wrecked and said Barker killed." All the default or negligence that resulted from leaving the switch open is charged directly against the defendant.
It is a well-established rule of pleading that a complaint for negligence against a railroad company must show by proper averments the violation of a duty owing to the plaintiff by the company, or by some one else for whose particular acts the company is held, by statute, to be responsible. It is not sufficient to allege in general terms that it was the duty of the defendant to do this, or to do that. Such an averment is the statement of a conclusion, not of a fact. Pittsburgh, etc., R. Co. v. Peck (1905), 165 Ind. 537, 76 N.E. 163, and cases cited. The general rule in such cases is that the pleader must distinctly set forth in his complaint the facts which he claims creates the duty that has been violated, and from the facts so stated the court will determine as a matter of law the existence or the nonexistence of the duty. Pittsburgh, etc., R. Co. v. Lightheiser (1904), 163 Ind. 247, 71 N.E. 218; Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 102 Am. St. 185, 69 N.E. 669; Cleveland, etc., R. Co. v. Parker (1900), 154 Ind. 153, 56 N.E. 86; Evansville, etc., R. Co. v. Duel (1893), 134 Ind. 156, 33 N.E. 355; Chicago, etc., R. Co. v. Fry (1892), 131 Ind. 319, 28 N.E. 989; Indiana, etc., R. Co. v. Dailey (1887), 110 Ind. 75, 10 N.E. 631; Lake Shore, etc., R. Co. v. Stupak (1886), 108 Ind. 1, 8 N.E. 630; Pittsburgh, etc., R. Co. v. Adams (1886), 105 Ind. 151, 5 N.E. 187; South Bend, etc., Plow Co. v. Cissne (1905), 35 Ind.App. 373, 74 N.E. 282; Creamery, etc., Mfg. Co. v. Hotsenpiller (1900), 24 Ind.App. 492.
The duties of master and servant are correlative. On the one hand it is the duty of the master to employ none but competent servants, to use due care in providing his servants with safe machines and appliances to work with, and to exercise reasonable care in keeping them in good repair; and to the end that they be kept in good repair he is required to make inspection at reasonably frequent intervals. These are duties that the master owes to his servants, the performance of which he cannot delegate to another so as to relieve himself from responsibility for their nonperformance or imperfect performance. 20 Am. and Eng. Ency. Law (2d ed.), 55, and cases cited.
On the other hand, the duty of operating the machine in all its details and departments is a duty the servant owes the master, and when any duty connected with operating any part of the machine is delegated to another by the master, such person performing such duty is a fellow servant of all others engaged by the master in carrying on the common enterprise. Indianapolis, etc., Transit Co. v. Foreman, supra; Hodges v. Standard Wheel Co. (1899), 152 Ind. 680, 52 N.E. 391; Baltimore, etc., R. Co. v. Little (1897), 149 Ind. 167, 48 N.E. 862; Indianapolis, etc., Transit Co. v. Andis (1904), 33 Ind.App. 625, 72 N.E. 145; Cleveland, etc., R. Co. v. Brown (1896), 73 F. 970, 20 C. C. A. 147; 2 Labatt, Master and Serv., p. 1726; St. Louis, etc., R. Co. v. Needham (1894), 63 F. 107, 11 C. C. A. 56, 25 L. R. A. 833.
In the last case it is said:
In the complaint under consideration it is not averred that the switch or any of its appliances was unsound, defective or out of repair. The negligence complained of was not in the construction, preparation or repair of the railroad, but in its operation. The switch, as a part of the railroad, was safe before it was made unsafe by some one, who in doing it was not imperfectly performing a duty of the master. The allegation is that the defendant negligently permitted such switch to become unlocked and opened, and so adjusted as to carry the decedent's train from the main track onto the siding. According to the averments the situation resulted from no defect in...
To continue reading
Request your trial