Cincinnati, H. & D.R. Co. v. Thiebaud

• Decision Date: 07 November 1900
• Docket Number: 661.
• Citation: 114 F. 918
• Parties: CINCINNATI, H. & D.R. CO. v. THIEBAUD.
• Court: U.S. Court of Appeals — Sixth Circuit

114 F. 918

CINCINNATI, H. & D.R. CO. v. THIEBAUD.

No. 661.

United States Court of Appeals, Sixth Circuit.

November 7, 1900

Lawrence Maxwell, Jr., for plaintiff in error.

Harlan Cleveland and Charles M. Cist, for defendant in error.

This is a suit brought by Thiebaud, the defendant in error, as administrator of Sweetman, against the Cincinnati, Hamilton &amp Dayton Railroad Company, to recover damages arising from the death of the deceased, occasioned by the negligence of the company. The right of the administrator to bring such an action is founded upon a statute of Indiana, where the accident and death occurred, which provides that: 'When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages can not exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. ' Burns' Rev. St. 1894, Sec. 285. Sweetman was a locomotive engineer in the employment of the railroad company, and was killed in a collision with a freight engine on the defendant's railroad in Fayette county, Ind between Longwood switch and Saulter's switch, on September 18, 1896, under the following circumstances: The deceased on that day was running an engine drawing the pay car of the defendant going eastwardly from Indianapolis Ind., to Hamilton, Ohio. The defendant's freight train No. 95, also going eastwardly between those points, had been stalled near Longwood switch. The conductor of the freight train thereupon ordered part of the cars placed on the Longwood switch or side track, and proceeded with the balance of the train to Saulter's switch or side track, four and a half miles distant east, intending to come back to Longwood switch for the part of the train he left there. From Saulter's switch to Connersville is eight-tenths of a mile, and at said last-mentioned point a telegraph operator was stationed. Having placed said freight cars on the switch at Saulter's switch, the conductor and engineer of No. 95 started west with the locomotive and crew to get the cars which had been left at Longwood switch, and came into said collision with the deceased's locomotive east of Longwood switch. The conductor and engineer of freight train No. 95 had not left and did not leave a flagman or signals at Longwood switch, and did not go to Connersville to receive orders before proceeding westwardly to Longwood switch on the main track; and in failing to leave a flagman or place signals at Longwood switch, or in not going to Connersville to receive orders before proceeding westwardly on said main track, were, it is conceded, negligent, and said negligence was the cause of the accident. The bill of exceptions states that it was proven on the trial, and not disputed, that the deceased was guilty of no negligence, and had the right to be with his train at the place where and at the time when he was killed, and also that the railroad at that place consisted of a single track. The deceased left a widow and children, to whom the damages recovered would, under the Indiana statute above recited, inure. By the employer's liability act of Indiana in force when the accident happened it was enacted: 'That every railroad or other corporation, except municipal, operating in this state shall be liable for damages for personal injury suffered by an employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: * * * (3) Where such injury resulted from the act or omission of any person done or made in obedience to any rule, regulation or by-law of such corporation, or in obedience to the particular instructions given by any person designated with the authority of the corporation in that behalf. (4) Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop roundhouse, locomotive engine or train upon a railway, or where such injury was caused by the negligence of any person, coemploye or fellow servant engaged in the same common service in any of the several departments of the service of any corporation, the said person, coemploye or fellow servant, at the time acting in the place, and performing the duty of the corporation in that behalf, and the person so injured, obeying or conforming to the order of some superior at the time of such injury, having authority to direct. ' Laws 1893, pp. 294, 195. The plaintiff's appointment as administrator was made in Indiana by the court having probate jurisdiction there. The validity of the appointment is denied by the plaintiff in error in this court, and the rejection of an offer of proof made of certain matters in the court below mentioned in the opinion which follows is relied on to support an assignment of error. On the trial of the case the court, upon the foregoing facts appearing or being conceded, instructed the jury that the verdict should be for the plaintiff, leaving the amount of the damages to be settled by them. To this instruction counsel for the railroad company excepted. The jury returned a verdict for $3,000 in favor of the plaintiff, whereon judgment was duly entered, and the case is brought here on writ of error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

SEVERENS Circuit Judge, having made the foregoing statement of the case, .

In support of the assignments of error, it is contended by counsel in behalf of the railroad company:

1. That the case is not within the scope of the Indiana statue fixing the liability of employes. The contention is that it applies only to persons who are 'obeying or conforming to the order of some superior, at the time of such injury, having authority to direct'; and it is said (which appears to be the fact) that there was no proof that the deceased was acting at the time under any special direction, or otherwise than in the discharge of the general duty of his employment. It is insisted for the defendant in error that the bill of exceptions does not purport to contain all the evidence, and that we may presume that proof was made of such facts as would show that the deceased was under such direction. But, although the bill of exceptions does not, in terms, state that it contains the whole case which the evidence tended to make out, yet it purports to state the facts which did appear by the evidence and the admissions of counsel, and it does this in such a way as to indicate that the whole case, so far as the parties deemed it material to the exceptions taken, is presented. It is not in all cases necessary that the bill should expressly declare that it contains all the evidence, or the whole case, in order to repel the presumption that other facts may have been proven or other evidence given. It is enough if, from the frame of the bill, it is clearly implied that that which is stated constitutes the whole of what took place upon the trial. Ironwood Store Co. v. Harrison, 75 Mich. 197, 42 N.W. 808; Everett v. Clements, 9 Ark. 480; Leggett v. Grimmett, 36 Ark. 500; Robinson v. Hartridge, 13 Fla. 505. We therefore think that the question under discussion must be considered upon the assumption of the fact that the deceased was not, at the time of the accident, in the execution of any special order or direction.

Counsel for the plaintiff in error contends that the clause in subdivision 4, requiring that the person injured shall have been acting in obedience to the order of some superior, is to be construed in immediate connection with each of the two preceding clauses which describes the classes of persons who commit the injury, and reference is made to two cases decided by the supreme court of Indiana involving the construction of the third and fourth subdivision of section 1 of the act (Laws 1893, pp. 294, 295). Railway Co. v. Little, 149 Ind. 167, 48 N.E. 862; Railroad Co. v Montgomery, 152 Ind. 1, 49 N.E. 582, 71 Am.St.Rep. 301. The classification made by the learned judge who delivered the opinion in the case of Railway Co. v. Little of the cases taken out of the operation of the fellow-servant rule by subdivisions 3 and 4 of section 1 of the act seems to require a construction different from that contended for. But the only question pertinent here actually involved and decided in that case was whether a brakeman was included in the classes of persons by whose negligence the injury is committed. It was held that he was not. In the Montgomery Case, however, it was distinctly held that the concluding clause was to be read in connection with each of the two clauses describing the persons by whose fault the injury happened. We are required to follow the construction of the act given by the supreme court of that state. But under the obligation of the same rule we are also required by the decision in the last-mentioned case to hold, as was there held, that the requirement that the injured person should be acting in conformity to the order of some superior is equivalent to a requirement that he should be acting in the line of his duty as an employe. Having regard to the well-known order of business of railroad companies, of which the court must take judicial notice, it could not be otherwise than that a subordinate, such as a locomotive engineer, when acting in the line of his duty as such, would be acting under the order of some superior. It is stated in the bill of exceptions that the deceased was guilty of no...