Chicago & E.R. Co. v. Mitchell
| Decision Date | 14 December 1915 |
| Docket Number | No. 22999.,22999. |
| Citation | 110 N.E. 680,184 Ind. 588 |
| Parties | CHICAGO & E. R. CO. v. MITCHELL. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Allen County; Howard L. Townsend, Special Judge.
Action by Robert G. Mitchell, administrator of the estate of William A. Jones, deceased, against the Chicago & Erie Railroad Company. A judgment for plaintiff was reversed by the Appellate Court (107 N. E. 743), and the cause was transferred, under section 1394, cl. 2, Burns 1914. Judgment of lower court affirmed.
See, also, 110 N. E. 78.
Walter Olds, of Ft. Wayne, W. O. Johnson and W. M. Johnson, both of Chicago, Ill., and C. K. Lucas, of Huntington, for appellant. Fred H. Bowers and Milo N. Feightner, both of Huntington, for appellee.
[1] Action for death, involving the relation of master and servant, under the rules of the common law, except as modified by the act of March 2, 1911, known as the Employers' Liability Act. Acts 1911, p. 145; sections 8020a-8020k, Burns 1914. At common law the servant assumed the ordinary risks incident to his employment, which included the particular risk of injury from the negligence of a competent fellow servant. Haskell & Barker Car Co. v. Przezdziankowski (1908) 170 Ind. 1, 9, 10, 83 N. E. 626, 14 L. R. A. (N. S.) 972, 127 Am. St. Rep. 352.
Section 1 of said act (section 8020a, Burns 1914) expressly makes an employer, with five or more persons employed, liable to an employé for negligent injury by a fellow servant. The effect of this section is to abrogate the assumed risk rule in so far as it applies to the particular risk of injury by a fellow servant. Vandalia R. Co. v. Stilwell (1914) 181 Ind. 267, 270, 104 N. E. 289;Chicago, etc., R. Co. v. Mitchell, 110 N. E. 215 (No. 22831), decided at this term of court; Pittsburgh, etc., R. Co. v. Lightheiser (1906) 168 Ind. 438, 449, 450, 78 N. E. 1033.
Sections 2 and 3 of the act of 1911 (sections 8020b, 8020c, Burns 1914) further restrict the application of the common-law doctrine of assumed risk and that of contributory negligence, but such restrictions are not presented here for consideration. The complaint avers, and the evidence shows, that appellant, the employer, had in its service more than five persons, and that the decedent's fatal injury resulted from the negligence of his fellow servants. Under such facts, section1 of the statute eliminates the common-law defense of assumption of risk of injury by a fellow servant.
The complaint, among other things, alleges that on and previous to July 22, 1911, appellant maintained on its grounds at Huntington ten tracks, running north and south, which were used for placing and holding freight cars for repair work thereon. These tracks were numbered, and No. 1 was the west track. Immediately west of said track numbered 1 there was located another called a supply track, used by appellant to haul in carloads of lumber, bolts, nails, etc., and to haul out cars loaded with car wheels. This supply track was always occupied to some extent by cars loaded with materials of the character above mentioned. Immediately west of the supply track and parallel therewith appellant had a long building holding lumber for car repairs, and immediately south of this building, four feet from and parallel with the supply track, appellant had another house containing bolts, nuts, nails, and other supplies for car repairs.
On July 22, 1911, appellee's decedent was in appellant's employ as a car repairer, and was then engaged in repairing a car located at a point on track No. 4, east of the supply track and to the south of the bolthouse. At that time appellant had placed on the supply track, immediately south of the bolthouse, two freight cars, not coupled, with a space of four feet between them. Decedent in his repair work needed some bolts, and started from his place of work to the bolthouse to get them, and attempted to pass between the cars on his way, but in so doing was crushed to death by appellant violently pushing an engine and string of cars against the said north car on the supply track causing it to come in violent contact with the other one, while decedent was between them.
It is further alleged that the route taken by decedent was the shortest and most practical one from the car being repaired to the bolthouse, and that the four feet open space between the two cars was provided by appellant for the purpose of giving the car repairers a short route to the bolthouse; that before attempting to pass between the cars decedent looked and listened for the approach of cars, but did not see or hear any, and could not have seen or heard, and did not know of, the approach thereof; that appellant gave no signal nor warning of the approach of the string of cars, and knew that the open space was left for the aforesaid purpose, and that open spaces of such character on the supply track were used by its employés as passage ways to the bolthouse.
[2] Appellant filed a demurrer to the complaint, and its overruling is assigned as error, but it has failed in its brief to point out any defect therein, and has therefore waived a consideration of its sufficiency. There was a trial by jury, with answers to interrogatories, and a general verdict for appellee. Appellant's motions for judgment on answers to interrogatories and for a new trial were each overruled.
[3] It is claimed that the trial court erred in overruling the motion for judgment. There were 55 interrogatories submitted to the jury for answer. While it is stated in the brief in general terms that there is irreconcilable conflict between the general verdict and the answers, it may well be doubted if any conflict is suggested by such particular designation as entitles appellant to a consideration of the error assigned. We have, however, examined the answers, but perceive no irreconcilable conflict on any material issue.
[4] Appellant's fourteenth reason assigned in its motion for a new trial was as follows:
“The answers to the following special interrogatories propounded to the jury and the answers of said jury to each of said interrogatories separately, are contrary to the undisputed evidence of said cause: Fifteen (15), seventeen (17), eighteen (18), and fifty-five (55).”
It contends here that the trial court erred in overruling the motion, because, as claimed, a consideration of the evidence discloses a total lack of support for the answers to the four questions. Were the claim conceded, we perceive no reason why such fact is material, nor has any reason or authority therefore been suggested or cited in appellant's brief. The judgment here was on the general verdict, not on the answers. Vandalia Coal Co. v. Price (1912) 178 Ind. 546, 549, 97 N. E. 429. If the answers found in favor of appellee facts covering a material issue which appellee was bound to prove, and which had no support in the evidence, a logical situation would be presented where appellant would be entitled by proper procedure to a reversal of the judgment, because in such case the general verdict, on a material issue, would have no support. But such relief would be granted for such reason, if presented, and not because the answers fail of such support. This motion for a new trial does assign as grounds therefor the insufficiency of the evidence to support the general verdict, but such question is not presented in the points and authorities set out in the brief, and is therefore waived. There are instances where this court may consider the lack of evidence to support answers to interrogatories, but no such situation here appears. Barr v. Sumner (1915) 107 N. E. 675.
[5] The evidence shows that on a line running east and west between the bolt and lumber buildings there was constructed a path about 8 feet wide across the supply and repair tracks. This was made of boards in the space between the tracks-about 10 feet -and between the rails of the tracks it was constructed of cinders. The cinders and boards were practically level with the tops of the rails. On the west side of the supply track was a wooden walk extending north and south, in front of the supply buildings, and several hundred feet south thereof, and intersecting said east and west path. Workmen used this path and walk in going to and from the supply houses and for transporting on trucks heavy materials to and from the cars being repaired. The east and west path was always kept open except when cars were being placed for repairs or removed from the repair tracks. The entrance to the bolthouse was at the south end thereof, and about 50 feet south of the east and west path. The deceased immediately before the accident was working on a car on track 4, at a point about 200 feet south of the east and west path. The repair tracks ran north and south where intersected by the path, but north thereof they curved to the northwest, and were further on united to the main track. Jones was killed at a point about 75 feet...
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