Cleveland, C., C. & St. L. Ry. Co. v. Foland

• Citation: 88 N.E. 787
• Decision Date: 11 June 1909
• Docket Number: No. 6,252.,6,252.
• Court: Court of Appeals of Indiana
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. FOLAND.

88 N.E. 787

CLEVELAND, C., C. & ST. L. RY. CO.

v.FOLAND.

No. 6,252.¹

Appellate Court of Indiana, Division No. 1.

June 11, 1909.

Appeal from Circuit Court, Delaware County; Jas. G. Leffier, Judge.

Action by William H. Foland against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.L. J. Hackney and C. E. Cowgill, for appellant. Bagot & Bagot, for appellee.

MYERS, J.

The appellee brought this action against appellant in the Madison superior court to recover damages for a personal injury alleged to have been caused by the negligence of appellant. On change of venue the cause was tried by a jury in the Delaware circuit court, resulting in a verdict and judgment in appellee's favor in the sum of $4,000. The jury, with their general verdict, returned answers to 137 interrogatories. Appellant's motion for judgment upon the answers to the interrogatories and its motion for a new trial were each overruled, and errors are here assigned on each of these rulings.

The complaint, concerning the sufficiency of which no question is presented, was in one paragraph, and shows: That on January 3, 1905, the appellee was injured while engaged with other employés of the appellant in preparing the foundation for an abutment for a bridge over Fall creek in Madison county, Ind., through the negligence of one William Litton, who was the superintendent, foreman, and boss over what was known as one of appellant's bridge gangs, of which appellee was then a member; that appellant appointed and delegated to said Litton “power and authority to provide the ways, works, tools, machinery, and appliances with which to do and perform said work, and to direct the manner and means of doing the same, and to order and direct and control the services and work of each and all of said gang, including this plaintiff, and to order, direct, and command each of said employés, including this plaintiff, as to what particular service they and each of them were to perform, and the particular place they and each of them should occupy in performing said work, and it was the duty of each of said employés, including this plaintiff, and they were each bound so to do, to conform to and obey each and every order of said Litton in and pertaining to all matters connected with said work and the performance thereof.” Other allegations of the complaint described the work being done, the manner of doing it, the particular service to be performed by appellee, as ordered by said Litton; that he was so engaged pursuant to said order at the time of the accident; that others of said gang, subject to the orders of said Litton, and in obedience to a negligent order to them given by said Litton, who was at the time acting for and in behalf of the appellant, greatly increased the danger and hazard to appellee, as Litton well knew, and by reason of the carrying out of said order appellee was injured; that appellee had no notice or knowledge whatever of such increased danger until the timber fell and injured him. Under said assignment of errors, the greater number of questions discussed relate to appellant's claim that there was a failure of proof of a material allegation of the complaint. Appellant in his brief, under the heading of “Points and Authorities,” directs our attention to its motion for judgment on the answers to interrogatories, and, in support of its motion for a new trial, that the verdict is not sustained by the evidence, that the court erred in refusing to give certain instructions asked by appellant, and in giving to the jury certain instructions upon its own motion.

The jury especially found: That appellee was, at the time he was injured, January 3, 1905, in the employ of appellant as a memberof one of its bridge gangs. That on said day he, with the other members of the gang, including William Litton, commenced work about 7 o'clock in the morning, and the accident happened about 11 o'clock. That prior to said day seven sticks of timber, called “piles,” each about 40 feet long and driven into the earth about one-haft their length, were standing in an excavation made for a bridge abutment on the east side of appellant's railroad track. That by the method pursued on the day of appellee's injury each of these piles were to be sawed off near the surface of the ground, and, a rope being attached to its upper end, the upper severed half of each piece of timber was to be suspended and removed by means of a crane derrick to the pile driver, by which it was to be driven into the earth in another part of the excavation. That, when the bridge gang first commenced work on said morning, appellee assisted in sawing one, and the first of these timbers to be so severed, and which required about 10 minutes. Appellee was then directed by Litton to go and steer the piles, saying that he did not want him to do anything else; that was his job. That thereafter his work consisted of helping to remove the pile driver and steering the suspended piles into the leads of the driver. That, from 10 to 20 minutes after appellee had assisted in the sawing of said pile, others of these seven piles were being sawed off, and in doing this work a noise was made which could have been heard for a distance of 50 feet. These piles, except about 1 1/2 or 2 inches on the side of each of them, were sawed off near the ice and left standing. That the appellee's sight and hearing was good, and, had he looked, he could have seen the condition of the standing timbers. That the excavation for the east wing of the abutment was about 40 feet in length, measured east of the railroad track, and its average width, north and south, was about 11 feet. That the water in the excavation was frozen, the ice being about 3 inches thick, and the average depth of the excavation to the surface of the ice was about 4 feet. About the middle of the preceding month, appellee assisted in nailing a board 12 to 14 feet long near the top of the second row of the standing piles from the east rail of the railroad track to one of the piles and to the cap of the bridge. This board was removed by two others of the bridge gang while appellee was standing about 25 feet from it and facing away from it, engaged in watching one of the timbers then suspended and being brought to a position for appellee to steer into the leads of the driver. When the pile fell which struck appellee, he was standing from 15 to 18 feet from where it stood. If he had been 5 feet further away, no injury would have resulted. Had he given attention to the men prying off the board, he would have known the removal of the board would likely cause the pile to fall. He was struck while outside the excavation, while watching a swinging pile being brought to a position for him to guide into the leads of the driver. The work of sawing off the piles and the driving of the same and the work of appellee was in the pit or excavation, except when assisting to remove the driver. His work in the pit required about 10 minutes for each pile. When not in the pit, his work required him to be on the bank outside of the pit.

We have not set out the findings in full but we have given the substance of all of them in order that appellant's objections and contentions may be better understood. If we understand appellant's argument, it is based upon the theory that the complaint places appellee in the pit or excavation at the time he was injured, while the proof and the facts as found by the jury place him just outside of the pit, and therefore a fatal variance or failure of proof. It is true the complaint alleged that the appellee was ordered and directed by Litton “to go into said pit or excavation and act as a pile steerer,” and that upon orders from Litton the piles which appellee was to steer were to have a rope lashed to their tops and to be raised by the derrick and swung in their turn over the excavation, and the lower ends of which were to be seized by appellee and guided to the proper place, to be driven; that the place where appellee was required so to perform this duty was so located that, if the piles partly driven should fall, they would fall against him. It also appears that, while appellee was so engaged, and at the point where ordered and required to be, Litton negligently caused a board to be removed which allowed one of the piles to fall upon him, whereby he was injured. From the facts found it appears that, in the performance of the duty so assigned appellee, it was proper and necessary that he be in the excavation a portion of the time and to be outside upon the bank, out of the way of the swinging pile, a portion of the time. We are not persuaded that, because the complaint did not more explicitly allege the exact position occupied by appellee at the time he was injured by the falling pile, a fatal variance or failure of proof necessarily follows. Consumers' Paper Co. v. Eyer, 160 Ind. 424, 66 N. E. 994. It does appear from the complaint, and from the facts found, that appellee was in the performance of his duty and following the orders of his master at the time he was injured. Appellant does not claim that the allegations of appellee's complaint were not supported by evidence, except that he was not in the pit and not steering a pile at the time he was injured.

In Hartwell Bros. v. Peck & Co., 163 Ind. 357, 71 N. E. 958, it is said: “To constitute a failure of proof, the allegation of the claim or defense must be unproved, not in some particular or particulars only, but in the general scope and meaning.” On the question of variance, the language of the court in that case is especially applicable here in passing upon the question raised by the motion for judgment on the answers to the interrogatories. In that case it was held that a question of variance should be raised upon the introduction of the evidence. Had appellant followed this course of procedure in the case at bar, the...