Chicago & E.R. Co. v. Lain

• Decision Date: 07 February 1908
• Docket Number: No. 20,978.,20,978.
• Citation: 170 Ind. 84,83 N.E. 632
• Court: Indiana Supreme Court
• Parties: CHICAGO & E. R. CO. v. LAIN.

170 Ind. 84

83 N.E. 632

CHICAGO & E. R. CO.

v.LAIN.

No. 20,978.

Supreme Court of Indiana.

Feb. 7, 1908.

Appeal from Circuit Court, Fulton County; J. C. Nye, Special Judge.

Action by Henry Leroy Lain against the Chicago & Erie Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Judgment of circuit court reversed.

Removed by appeal from the Appellate Court under the third clause of section 10, Acts 1901, p. 567, c. 247, being section 1337j, Burns' Ann. St. 1901. For decisions in Appellate Court, see 72 N. E. 539, and 79 N. E. 547.

W. O. Johnson, Hollman & Stephenson, Henry Steis, C. C. Campbell, and U. Z. Wiley, for appellant. Isaiah Conner, George Burson, Simon Bybee, and F. M. Trissal, for appellee.

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 The third and fifth paragraphs were withdrawn, and a demurrer “for want of facts” to the other paragraphs was overruled.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 paragraphs 1, 2, and 4 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 1 of the employer's liability act of 1893 (Acts 1893, p. 294, c. 130), being section 7083, Burns' Ann. St. 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 employé while in its service, the employé 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 employé 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 said switch tracks and push it to another place 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 to not come onto the track where the plaintiff was at work, or to slacken the speed and move slowly and cautiously on said track, and without warning them that the plaintiff was at the place where he was directed to go, directed and permitted the locomotive engine belonging to defendant and operated by its employés to come onto said track at a careless rate of speed with a car attached, and allowed the men in charge thereof to carelessly detach said car from said engine, and, without any notice or warning, to force 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 employer's 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, etc., Co. v. Hullinger, 161 Ind. 673, 687, 67 N. E. 986, 69 N. E. 460, and cases cited; Indianapolis, etc., Transit Co. v. Foreman, 162 Ind. 85, 96, 69 N. E. 669, 102 Am. St. Rep. 185, and cases cited; Laporte Carriage Co. v. Sullender, 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, 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, 100 Ind. 221, 50 Am. Rep. 783;Louisville, etc., R. Co. v. Sandford, 117 Ind. 265, 19 N. E. 770;Daugherty v. Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204;American Rolling Mill Co. v. Hullinger, 161 Ind. 673, 67 N. E. 986, 69 N. E. 460; Black, Law & Prac. § 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, 160 Ind. 280, 66 N. E. 886.” It was said by this court in Pittsburgh, etc., R. Co. v. Lightheiser, 163 Ind. 247, 251, 252, 71 N. E. 218, 219: “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 employer's 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, 69 N. E. 460;Faris v. Hoberg (1892) 134 Ind. 269, 33 N. E. 1028, 39 Am. St. Rep. 261;Louisville, etc., R. Co. v. Sandford (1888) 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...