Clarke v. Pennsylvania Co.

• Decision Date: 15 September 1892
• Citation: 132 Ind. 199,31 N.E. 808
• Parties: Clarke v. Pennsylvania Co.
• Court: Indiana Supreme Court

132 Ind. 199

31 N.E. 808

Clarke

v.Pennsylvania Co.

Supreme Court of Indiana.

Sept. 15, 1892.

Appeal from circuit court, Bartholomew county; Keyes, Judge.

Action by Sylvester A. Clarke against the Pennsylvania Company to recover for personal injuries resulting from defendant's negligence. Judgment for defendant. Plaintiff appeals. Affirmed.

Francis T. Hord and M. D. Emig, for appellant. S. Stansifer, for appellee.

ELLIOTT, J.

The material facts stated as the appellant's cause of action are these: He was in the service of the appellee, in the capacity of a “section man,” and was a member of what was called the “floating gang of section men.” This “gang” was under the control of a fore man or “boss,” who employed and discharged its members. On the 4th day of August, 1886, the “gang,” under the control of its foreman, started on a hand car from Jonesville to a point south of that station, where it was to enter upon the work of loading and unloading gravel. On the same day another gang of men, under the control of a “section boss,” was engaged in repairing the track, and was riding on a hand car, as custom and duty required. The car on which this gang was riding was following the car on which the “floating gang” was riding. The car occupied by the appellant was running at the rate of seven miles an hour, and the appellant was propelling the car, standing with his back to the north, and to the car which was following. The car occupied by the “section gang” overtook that on which the “floating gang” was riding, and was, through negligence, run against the car in front, causing it to bound forward, and the appellant, being startled by the sudden collision and the act of the section boss in placing his hand under his arm, loosened his hold of the propeller, fell back upon the track, and the car of the “section boss” ran over him, seriously injuring him.

The act of the appellant in loosening his hold upon the propeller cannot be treated as contributory negligence, as it was influenced by a sense of sudden and impending danger. One who does an act under an impulse or upon a belief created by a sudden danger, attributable to another's negligence, is not to be regarded as guilty of contributory fault, even though the act would be regarded as a negligent one if performed under circumstances not indicating sudden peril. The principle we have stated is an old one, and firmly imbedded in our jurisprudence. Indianapolis, etc., R. Co. v. Carr, 35 Ind. 510;Indianapolis, etc., R. Co. v. Stout, 53 Ind. 143;Pennsylvania Co. v. Stegemeier, 118 Ind. 305, 20 N. E. Rep. 843; Buel v. New York, etc., R. Co., 31 N. Y. 314; Johnson v. Westchester, etc., R. Co., 70 Pa. St. 357; Pittsburgh, etc., R. Co. v. Taylor, 104 Pa. St. 306; Stokes v. Saltonstall, 13 Pet. 181; Jones v. Boyce, 1 Starkie, 493.

The important question in the case is whether the appellant can be considered as the fellow servant of the “section boss” in control of the car which was negligently propelled against that on which the “section gang” was riding, for if he was there can be no recovery. Our decisions-and there is a very long line of them-make it our imperative duty to adjudge that the members of both parties of section men were coemployes. They were engaged in the same general service, and in the same line of duty. It is unnecessary to comment upon our decisions in detail; it would, indeed, be unprofitable to cite them all, since the question cannot be regarded as an open one in this jurisdiction. Of the numerous cases, we cite only these. Ohio, etc., R. Co. v. Tindall, 13 Ind. 366;Wilson v. Madison, etc., R. Co., 18 Ind. 226;Slattery v. Toledo, etc., R. Co., 23 Ind. 81;Ohio, etc., R. Co. v. Hammersley, 28 Ind. 371;Gormley v. Ohio, etc., R. Co., 72 Ind. 31;Railway Co. v. Adams, 105 Ind. 151, 5 N. E. Rep. 187; Capper v. Railway Co., 103 Ind. 305, 2 N. E. Rep. 749; Railway Co. v. Lang, 118 Ind. 579, 21 N. E. Rep. 317; Railway Co. v. Stupak, 123 Ind. 210-222, 23 N. E. Rep. 246; Bier v. Railroad Co., (Ind. Sup.) 31 N. E. Rep. 471. It is...