Childress v. Lake Erie And Western Railroad Company

• Decision Date: 26 May 1914
• Docket Number: 22,647
• Parties: Childress, Administratrix, v. Lake Erie and Western Railroad Company
• Court: Indiana Supreme Court

105 N.E. 467

182 Ind. 251

Childress, Administratrix, v. Lake Erie and Western Railroad Company

No. 22,647

Supreme Court of Indiana

May 26, 1914

Rehearing Denied October 8, 1914.

From Superior Court of Tippecanoe County; Henry H. Vinton, Judge.

Action by Estella Childress, as administratrix of the estate of William A. Childress, deceased, against the Lake Erie and Western Railroad Company and another. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under subd. 2, § 1394 Burns 1914, Acts 1901 p. 565.)

Reversed.

Will R Wood and C. E. Thompson, for appellant.

John B Cockrum, Edwin P. Hammond, Dan W. Simms, William V. Stuart and Allison E. Stuart, for appellee.

OPINION

Spencer, J.

Appellant brought this action as administratrix of the estate of William A. Childress, deceased, against appellee and its engineer, Patrick Haggerty, to recover damages for the death of her decedent alleged to have been caused by the negligence of the defendants. The cause was tried by a jury which returned the following verdict: "We, the jury, find for the plaintiff, and against the defendant, the Lake Erie and Western Railroad Company, and assess her damages at $ 6,000.00. And find for the defendant, Patrick Haggerty." With this general verdict the jury also returned answers to certain interrogatories propounded to them. On motion of Haggerty the court, without objection, rendered judgment in his favor for costs and, as it was the last day of the term, the cause was continued as to appellee for further proceedings. At the next term appellee filed the following motion, omitting caption: "1. Said defendant, The Lake Erie and Western Railroad Company, respectfully moves the court for judgment in its favor on the special findings of the jury in answers to interrogatories notwithstanding the general verdict against said defendant. 2. Said defendant, The Lake Erie and Western Railroad Company respectfully moves the court for judgment in its favor for the reasons that the alleged acts of negligence were, as charged in the complaint, committed by its codefendant Patrick Haggerty, who was a servant and employe, as alleged in said complaint, of this defendant, and no judgment can be rendered against this defendant after the verdict herein rendered in favor of said Haggerty. 3. Said defendant, The Lake Erie and Western Railroad Company, respectfully moves the court for judgment in its favor for the reasons that the special findings show that the negligence, if any, which caused the death of said defendant, was committed by acts of commission and omission by said defendant company's codefendant Patrick Haggerty, who, as shown by said special findings, was in the service of this defendant, and in charge of the engine of the train which collided with and killed said decedent; and that as the jury in this case returned a verdict in favor of said Haggerty there cannot be any judgment rendered against this defendant." Appellant filed her written motion for judgment against appellee on the general verdict. The court overruled this motion and sustained the motion of appellee company, and rendered judgment in its favor against appellant for costs. The second and third grounds of appellee's motion are unknown to our practice and are of no effect. The first ground is a motion for judgment on the answers to interrogatories notwithstanding the general verdict.

It appears from appellant's complaint that on June 11, 1908, appellant's decedent was struck and killed at a certain highway crossing in Tippecanoe county by one of appellee's trains on which Patrick Haggerty was engineer. The physical conditions at and near the crossing are described in great detail and it is then charged that the train was run over said crossing at the excessive and dangerous rate of speed of eighty miles an hour; "that no whistle was sounded on the engine of said train at a distance of not less than eighty rods nor within one hundred rods of said crossing at said time, to give warning to plaintiff's decedent of the approach of said train; that no bell was sounded to give warning of the approach of said train; that there was at said time on said train a whistle and a bell; that no warning either by bell or whistle was given at any point from said crossing and northwest for a distance of one hundred rods, and in fact no signal of any kind or character was given to notify said Childress of the approach of said passenger train to said crossing, thereby to notify him to stand aside and yield said crossing to said defendant company and for the passage over said crossing of said train." It is further averred that decedent would have escaped injury had the warning signals been given of the approach of said train to said crossing; "that said defendant company and said Patrick Haggerty were both and each careless and negligent in failing and neglecting to sound the whistle on said engine", etc. It is true that the complaint also alleges that on the company's right of way, near said highway crossing, there was an embankment extending at one place ten feet and four inches above the rails; that there was a tower house 250 feet north of the crossing; also an oil house and a semaphore on the right of way, and weeds and grass along the embankment to the height of three or four feet; all of which served to obstruct the view of persons approaching the crossing from the east. Such facts, if proven, might properly be considered in determining decedent's contributory negligence, if any, and also with reference to the degree of care required of appellee in operating its trains over such crossing, but the maintenance of such obstructions on the right of way and near the crossing did not, in itself, constitute negligence, and, independently, would not give rise to a cause of action. We must conclude therefore that appellant's complaint proceeds on the theory that decedent's death resulted from the negligence of appellee and its engineer, Haggerty, in the operation of the train. It is based on § 5432 Burns 1914, § 4021 R. S. 1881, which, after making it a penal offense not to comply with the provisions of § 5431 Burns 1914, § 4020 R. S. 1881, relative to the giving of signals at railroad crossings, provides further that "the company in whose employ such engineer or person may be, as well as the person himself, shall be liable in damages to any person or his representatives who may be injured in property or person, * * * by the neglect or failure of any such engineer or other person as aforesaid."

The general rule is well settled that where the wrongful acts or omissions of two or more persons, acting together or independently, unite in causing a single injury, they are severally liable for such damages as may result, and the injured party may enforce liability against them jointly or severally, or against part only of the wrongdoers. Following this doctrine it has been held frequently that no one of two or more defendants, sued as joint tortfeasors, may complain if recovery is had against him and not against the other equally liable. This general rule, however, does not apply where the relation of master and servant exists between two defendants and there is no claim that the master actually participated in or directed the commission of the wrong but is sought to be held only under the doctrine of respondeat superior. Under such circumstances, if the master is held liable he has a right of action against his servant for indemnity, and such right would be defeated by a verdict and judgment which released the servant. Indiana, etc., Torpedo Co. v. Lippincott Glass Co. (1905), 165 Ind. 361, 75 N.E. 649; City of Anderson v. Fleming (1903), 160 Ind. 597, 66 L. R. A. 119, 67 N.E. 443; Doremus v. Root (1901), 23 Wash. 710, 63 P. 572, 54 L. R. A. 649.

Appellant earnestly insists that under the statute, above quoted from the liability of the railroad company does not flow from the relation of master and servant but is...