Chicago & E.R. Co. v. Wagner

• Decision Date: 05 November 1896
• Citation: 17 Ind.App. 22,45 N.E. 76
• Parties: CHICAGO & E. R. CO. v. WAGNER.
• Court: Indiana Appellate Court

17 Ind.App. 22

45 N.E. 76

CHICAGO & E. R. CO.

v.WAGNER.¹

Appellate Court of Indiana.

Nov. 5, 1896.

Appeal from circuit court, Huntington county.

Action by Henry H. Wagner, as administrator, against the Chicago & Erie Railroad Company, for the death of plaintiff's decedent. From a judgment for plaintiff, defendant appeals. Reversed.

W. O. Johnson and Kenner & Lesh, for appellant. Spencer & Branyan, for appellee.

GAVIN, J.

Appellee sued to recover for the death of his decedent, appellant's servant, who lost his life through its negligence. It is charged in the complaint that the decedent was, when employed by appellant, without experience or training as a brakeman, of which fact appellant was informed; that appellant operated a gravel train, the cars of which were provided with aprons at each end, consisting of a plank platform, being really an extension of the floor of the car, by means of which, when the cars were coupled, there was formed a continuous floor, without any open space between the cars; that these aprons ought to have been, and were usually, put on with hinges, so that they could be folded back, thus leaving the space between the cars open, but appellant's cars were negligently and carelessly constructed, without any hinges for the aprons, which were thereby fixed and fast to the end of the car, thus making them unsafe and dangerous, as appellant knew, but that decedent was ignorant of the unsafe and dangerous construction of such cars; that without any notice of their character, and without any instruction from appellant as to how such cars should be coupled, he, without fault or negligence, undertook to make a coupling of much cars, and was caught by the aprons, and crushed to death.

The correlative rights and duties of master and servant are considered, and authorities cited, in Pennsylvania Co. v. Witte (Ind. App.) 43 N. E. 319, and Railway Co. v. Quinn (Ind. App.) 43 N. E. 240. We do not deem it necessary to again review them. It is well settled that it is the duty of the master to exercise reasonable care to furnish reasonably safe places in which, and appliances with which, the servants are to work, and to exercise the same care to keep them in such condition. It is also true that the servant assumes all the risks ordinarily incident to the work in which he engages, but the servant does not assume the hazards occasioned by the master's negligent breach of his duty, unless, with knowledge thereof, he continues in the master's service, when, as a general rule (subject to some exceptions with which we have not now to deal), the servant is, in Indiana, held to assume these added hazards. In actions such as this, the general averments of negligence or want of contributory negligence or knowledge of dangerous defects will be deemed sufficient as against a demurrer, unless the facts specifically stated clearly show the contrary. Railway Co. v. Malott, 13 Ind. App. 289, 41 N. E. 549;Coal Co. v. Bridgewater, 13 Ind. App. 333, 40 N. E. 1101. The general averment of knowledge or want of knowledge includes both actual and imputed knowledge. Pennsylvania Co. v. Witte, supra.

It is urged by counsel that the facts set forth show that the deceased must have known the condition of these cars, because it was open and obvious. It is sufficient answer to this to say that, for aught that appears, this coupling may have been undertaken in the dark, or in such a storm or under such circumstances, requiring haste or speed, as that he may not have had the opportunity to learn their character. The specific facts are not sufficient to overthrow the general allegations.

When we take up the consideration of the questions presented by the motion for new trial, we are confronted with the contention of counsel for appellee that the evidence is not in the record, because it does not appear that the reporter's manuscript, which is embodied in the transcript without copying, was filed with the clerk before it was incorporated in the bill of exceptions. In Hull v. Louth, 109 Ind. 315, 10 N. E. 270, the supreme court held it to be sufficient compliance with the statute that the evidence should be filed with and as a part of the bill of exceptions. In Holt v. Rockhill, 143 Ind. 530, 40 N. E. 1091, however, that court stated: “A strict compliance with the statute, therefore, requires that such longhand manuscript be filed in the clerk's office before it is incorporated in the bill of exceptions, and that fact must be shown in the transcript in the bill of exceptions, or in some other appropriate way.” Whether or not, however, this strict construction should be given, and the statute enforced as mandatory, the court did not absolutely decide. In De Hart v. Board, 143 Ind. 363, 41 N. E. 826, that court did, however, authoritatively declare the rule to be as intimated in the decision first quoted, saying: “There is nothing to show that the longhand manuscript was ever filed in the clerk's office before it was incorporated in the bill of exceptions. This the statute requires to be done. Rev. St. 1894, § 1476 (Rev. St. 1881, § 1410).” Horner's Rev. St....