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

• Decision Date: 08 December 1908
• Docket Number: No. 21,107.,21,107.
• Citation: 171 Ind. 307,86 N.E. 405
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. PERKINS.
• Court: Indiana Supreme Court

171 Ind. 307

86 N.E. 405

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

v.PERKINS.

No. 21,107.

Supreme Court of Indiana.

Dec. 8, 1908.

Appeal from Circuit Court, Benton County; J. F. Saunderson, Judge.

Action by Emery Perkins against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.Benjamin Crane, Charles M. McCabe, and Charles M. Snyder, for appellant. A. C. Harris and Fraser & Isham, for appellee.

MONTGOMERY, J.

Appellee recovered a judgment on account of personal injuries received while in appellant's service. The complaint consisted of two paragraphs, and was answered by a general denial. Demurrers to each paragraph of complaint, on the ground that the facts therein contained were insufficient to constitute a cause of action, were overruled, and these rulings have been assigned as errors. The first paragraph of complaint, omitting the caption, prayer, and signature, is as follows: “The plaintiff complains of the defendant, and in complaining says: That by reason of the wrongs and injuries hereinafter alleged, the defendant became, and now is, indebted to the plaintiff in the sum of $25,000, for that, whereas, on and before the 19th day of December, 1904, the plaintiff was employed by the defendant as his master and engaged on and before said day in the service of the defendant as a servant under a contract of employment, whereby the defendant employed and the plaintiff served as a brakeman on a freight train of the defendant, by which the defendant acted as a railway corporation and transported commerce, as a common carrier, for hire, by its said freight train, over and upon a railroad track and right of way of it in and through Benton county, Ind. That the defendant on said day had occupied and possessed a right of way and a railroad track in and through Benton county, Ind., more than 100 feet wide at the place hereinafter mentioned, which said right of way was occupied on said day by main, side, and passing tracks, and by a structure, substantial and heavy, erected on its right of way in close proximity to its sidetrack, in the town of Fowler, Benton county, Ind. That said building was constructed of heavy timbers, framework, lumber, and the like, and used to store coal. That said building so closely occupied the right of way up to the side track as that an ordinary freight car passing thereby approximated the same within a few inches. That said building had long before said 19th day of December so occupied the right of way of the defendant, and the proximity of it to the track was on said day and long before well known to the defendant. That on said day the plaintiff was about 20 years of age, of perfect physical and mental development and strength, but having had no experience in the dangers, hazards, and duties of a railway brakeman, except what he had acquired in the previous six months as rear brakeman on the freight train of the defendant. That, when he was employed by the defendant, the defendant contracted and agreed with him, before he entered upon the discharge of his duties as brakeman, to give him notice in writing of all dangerous places, overhanging or nearby structures, which would in any wise add to the hazard of his duties. That in a pretended compliance with said contract the defendant gave to plaintiff written description of many structures that overhung and closely approximated its track, but wholly failed and neglected in said writing or otherwise to give him any notice of the existence of said structure at said town of Fowler. That, when the plaintiff went into the employment of the defendant, he was wholly unfamiliar with railroads, and relied wholly upon the representation of said defendant that the writing delivered to him would contain notice of all the dangerous places along its track. That the plaintiff had no notice, knowledge, or suspicion that said building approximated the track in the manner and form heretofore alleged, or in any other wise, so as to hazard the life or limb of the employés of the road. Neither had the plaintiff any opportunity to judge of the proximity of said buildings to said track until the wrongs and injuries hereinafter complained of. That on said 19th day of December, 1904, in the nighttime, the plaintiff came to the town of Fowler on a freight train of the defendant, consisting of many freight cars, an engine, tender, and coach, for the accommodation of the crew, which said train was manned, operated, and controlled in the manner following; that is to say: The principal, his master, was present, operating and directing the movement, management, and doings of said engine and cars, and controlling, directing, and working the crew thereof, to wit: The engineer, fireman, front brakeman, and this plaintiff, in the person of the conductor, who had, as vice principal, absolute control and authority over all the servants, ways, and means of the defendant by which it transported the commerce in said train. That among other of the cars on said train was one freight car, equipped with brakes, that could be, and were, set and released by a shaft extending from the machinery of said car and the brake down by the wheels and under the body of the car, which said shaft extended upward above the car, and was equipped with a wheel, which, on being turned one way, so operated said shaft and the chains, wheels, and the like articulated thereto, as that the brake was thereby set; and by turning said wheel in the opposite direction the brakes were released. That the only means of reaching the top or roof of said car where said wheel was situate was by a ladder which extended from top to bottom on the side of said car. That on said 19th day of December, 1904, the said defendant, for the convenience of itself, determined to put said car in and stop the same on the side track at the town of Fowler, in the doing of which said car would necessarily pass, with the ladder of it, within six inches of said structure. That the plaintiff was standing on the ground, in a place of perfect safety, when he was ordered by his master to go up the ladder of said car, and at a point designated to set the brake and stop said car. That when upon the ladder, on his way to discharge the duty imposed upon him by his master, the defendant, by other order and direction to the engineman, put said car in motion, and ran the same passed and along by said structure, in the darkness, and thus and thereby caught the plaintiff between its said car and said structure and broke his leg, and the foot of him being caught and held between said ladder and said structure the bones of his foot and the tendons and muscles thereof were twisted, broken, and thrown out, and, as the car passed, the plaintiff was thrown therefrom and cast under the wheels of the car, three of his ribs being broken thereby, his leg lost, and his skull fractured. That the plaintiff was wholly without fault, and he was not negligent either in going upon said car or in the doings that brought about his injuries; but that the said injuries to plaintiff wholly resulted from the negligence and want of care of the defendant and the breach of its duty toward him. That, by reason of the injuries received by the plaintiff as aforesaid, he is rendered incapable of earning money and has suffered, and will continue to suffer, great pain and anguish of mind.”

Appellee's learned counsel concede that the complaint is founded upon the common-law obligations and duties of a master to his servant, as embodied in clause 1 of section 8017 of Burns' Annotated Statutes of 1908. It is an elementary principle that masters owe their servants the duty of providing them a reasonably safe place in which to work, and of exercising ordinary...