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

• Decision Date: 31 October 1905
• Docket Number: No. 5,452.,5,452.
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. PATTERSON.

37 Ind.App. 617

75 N.E. 857

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

v.PATTERSON.

No. 5,452.¹

Appellate Court of Indiana, Division No. 2.

Oct. 31, 1905.

Appeal from Circuit Court, Decatur County; Francis T. Hord, Judge.

Action by Samuel N. Patterson against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

L. J. Hackney, for appellant. George Bruce, for appellee.

ROBY, J.

Appellee had judgment in an action for personal injuries. Cause was tried upon a single paragraph of complaint. Errors assigned are that the court erred in overruling appellant's demurrer to the complaint and in overruling its motion for a new trial.

It is averred in the complaint: That appellant was operating a railroad, and appellee was in its employment on February 3, 1903, in the capacity of an extra engineer, and on said day it ordered him to take its engine, No. 723, and pull a freight train from Cincinnati to Indianapolis. That said engine had been negligently permitted to become and be out of repair and unfit for use, and that the glass had been broken, or taken out of the cab windows, and said windows covered and closed with boards, so that they could not be used. That as originally constructed, said cab had glass windows on the side and front for the use of engineer and fireman, and that they were made to open, so that the engineer could look back, see his train, and receive signals from the conductor and brakeman relative to its management; and by reason of the windows being boarded up, it became necessary for appellee, in order to receive signals relative thereto, to turn from his seat toward the center of the cab, thereby bringing his face in proximity to the water gauge and valve thereon. That the water gauge was partly composed of glass, was in the form of a tube 12 inches long, and that there were valves and cocks in the cab which appellant had negligently suffered to be and remain out of repair, and that they were leaking and making a noise, rendering it difficult for appellee to hear. That said water gauge was liable to explode at any time and to injure appellee, of which appellants had knowledge and appellee none. It is also averred: That appellee was in the line of promotion in said service, and that he was induced to take out and operate said engine by appellant's roundhouse foreman, who had charge of and full power in its behalf, over its engineers at the Cincinnati terminal, and to whose orders he was bound to conform. That said foreman assured him that the engine was perfectly safe for use, and threatened to discharge him if he did not take the same out. That while operating said engine, and in endeavoring to get signals from the brakeman for the placing of the engine in such position that the locomotive and tank might be uncoupled, said water gauge exploded, the steam and broken glass striking him in the face, destroying one eye, damaging the other, and inflicting additional injury. “That said injuries were caused by defendant's negligence as herein set forth and alleged.” It is the unquestioned duty of the master to use reasonable care in furnishing safe tools and appliances for the servant's use. This duty is shown by the allegations of the pleading in question to have been disregarded by appellant. No suggestion is made to the effect that the engine was in a reasonably safe and fit condition for use; but, in support of the assignment, based upon the overruling of the demurrer, it is argued that the negligent boarding up of the windows was not the proximate cause of the injury, but that said proximate cause was the bursting of the water gauge, not averred to have been caused by appellant's negligence.

It is averred that appellant did not exercise reasonable care in furnishing a safe engine, and, because of its negligence in that behalf, its employé was injured. A number of particulars are specified in regard to which the defects are explicitly pointed out, one of which was the liability of the water gauge to explode and injure appellee, of which fact he is averred to have been ignorant and appellant to have had knowledge. The general denial put in issue, among other things, whether or not the engine was defective as averred, and whether such defects caused the injury complained of, and each issue was one of fact. Chicago, etc., v. Martin, 31 Ind. App. 308, 65 N. E. 591. The averment that the injury was caused by the defective tool is sufficient, it not being overcome by specific facts exhibited. If it were true, as assumed, that no charge of negligence with regard to the water gauge is made, it would by no means follow that appellant would be relieved from liability. If its conduct in furnishing an engine which was defective, as alleged, caused appellee to be in a place of danger, thereby leading to his injury, such negligence is a proximate cause thereof, and the fact that other causes contributed thereto affords no defense. Cincinnati, etc., v. Worthington, 30 Ind. App. 663, 670, 65 N. E. 557, 66 N. E. 478, 96 Am. St. Rep. 355;Lake Shore, etc., v. McIntosh, 140 Ind. 261, 272, 38 N. E. 476;Board of Commissioners, etc., v. Mutchler, 137 Ind. 141, 36 N. E. 534.

It is averred at length that, had the windows of the cab been in condition to use, appellee would, in the work he was doing when injured, have been taken away from danger, while because of their defective condition, he was compelled to occupy a portion of the cab, whereby he was exposed thereto, and his injury thereby caused. The demurrer admits these allegations to be true, and there was therefore no error in overruling it. Indianapolis Union Railway Co. v. Houlihan, 157 Ind. 494, 504, 60 N. E. 943, 54 L. R. A. 787.

In support of the ground stated for a new trial that the evidence is insufficient to sustain the verdict, it is argued that whether appellee would, had the windows been in proper condition, have been turned away from the point of danger at the instant of explosion, is purely conjectural. This contention may readily be granted, but there was evidence from which the jury might find, as the general verdict does, that he was in the place of danger while receiving signals and obtaining information relative to the movement of the engine, and that his presence there was caused by the windows in the cab being boarded up. Conjectures as to what he might have been doing in contingencies which did not exist do not affect the finding of fact as to what he was doing and the conditions leading to the action taken. There was evidence tending to sustain appellee's theory relative to the cause of the injury complained of. Appellant requested a number of instructions embodying its theory upon this subject. They were not given, and, in view of what has been said, will not be adverted to. It may be that the fireman was charged with the duty of receiving signals and communicating them to his engineer, as asserted, but such duty cannot be regarded as exclusive. The obligation which rests upon the engineer in the performance of his responsible task calls for constant vigilance upon his part, and we decline to hold that keeping a vigilant outlook was not within the line of his duty.

A considerable number of cases, in which questions of proximate cause have been considered, are cited in appellant's brief. The facts considered in them differ from those presented in this case. Whether an...