Clarke v. The Pennsylvania Co.

• Decision Date: 15 September 1892
• Docket Number: 15,154
• Citation: 31 N.E. 808,132 Ind. 199
• Parties: Clarke v. The Pennsylvania Company
• Court: Indiana Supreme Court

31 N.E. 808

132 Ind. 199

Clarke v. The Pennsylvania Company

No. 15,154

Supreme Court of Indiana

September 15, 1892

From the Bartholomew Circuit Court.

Judgment affirmed.

F. T Hord and M. D. Ewing, for appellant.

S Stansifer, for appellee.

OPINION

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." His "gang" was under the control of a foreman 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 can not 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 jurisprudence. Indianapolis, etc., R. W. Co. v. Carr, 35 Ind. 510; Indianapolis, etc., R. R. Co. v. Stout, 53 Ind. 143; Buel v. New York, etc., R. R. Co., 31 N.Y. 314, Johnson v. Westchester, etc., R. R. Co., 70 Pa. 357; Pittsburgh, etc., R., W. Co. v. Taylor, 104 Pa. 306 (49 Am. R. 580); Stokes v. Saltontsall, 13 Pet. 181; Jones v. Boyce, 1 Stark. 402.

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 co-employees. 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 can not be regarded as an open one in this jurisdiction. Of the numerous cases we cite only these: Ohio, etc., R. R. Co. v. Tindall, 13 Ind. 366; Wilson v. Madison, etc., R. R. Co., 18 Ind. 226; Slattery v. Toledo, etc., R. W. Co., 23 Ind. 81; Ohio, etc., R. R. Co. v. Hammersley, 28 Ind. 371; Gormley v. Ohio, etc., R. W. Co., 72 Ind. 31; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; Capper v. Louisville, etc., R. W. Co., 103 Ind. 305, 2 N.E. 749; Cincinnati, etc., R. W. Co. v. Lang, 118 Ind. 579, 21 N.E. 317; Lake Shore, etc., R. R. Co. v. Stupak, 123 Ind. 210, 23 N.E. 246 (222); Bier v. Jeffersonville, etc., R. R. Co., ante, p. 78. It is probably true that some of the earlier cases we have cited state the doctrine more broadly than the later and better considered cases authorize, and we are not to be understood as approving them in all respects, but the general doctrine they state, limited to such cases as this, is that of the very latest decisions upon the subject.

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