Cleveland, C., C. & St. L. Ry. Co. v. Foland, No. 21,651.

• Docket Nº: No. 21,651.
• Citation: 174 Ind. 411, 91 N.E. 594
• Case Date: April 20, 1910
• Court: Supreme Court of Indiana

174 Ind. 411
91 N.E. 594

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

No. 21,651.

Supreme Court of Indiana.

April 20, 1910.

Appeal from Circuit Court, Delaware County; Jos. G. Leffler, Judge.

Action by William H. Foland against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment of the Appellate Court (88 N. E. 787) affirming a judgment for plaintiff, defendant appeals. Reversed, with instructions.

[91 N.E. 595]

A. B. Everhard, C. E. Cowgill, L. J. Hackney, and Frank L. Littleton, for appellant. Bagot & Bagot, for appellee.

MYERS, J.

This was an action by appellee against appellant for alleged negligence.

The material portions of the complaint, which is in one paragraph, are: “That appellee was an employé and servant of appellant, as a laborer engaged in the work of bridge building, and with other employés of appellant was engaged in preparing the foundation for abutments for a bridge. That the plaintiff and the other employés with whom he was so engaged constituted a force of men called a ‘bridge gang,’ and the defendant appointed and constituted one William Litton superintendent, foreman, and boss over said gang, and gave and delegated to him 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 service 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. That on said 3d day of January, 1905, there were at said place a great number of piles, each consisting of a heavy place of timber about 40 feet in length and 8 to 12 inches in diameter, which had been previously driven into the ground about half the length, leaving about 20 feet in length of the upper end of each projecting above the level and surface of the earth. That, prior to said date, there had been prepared an excavation or pit in which piling was to be driven, and that said piling which had been so previously driven as aforesaid had been braced and fastened together at the top by spiking a heavy board across the tops thereof, and from one to another, so that they were firmly stayed, supported, and held in place and kept from falling. That on said day said piles were so braced and stayed as aforesaid and secured so that none of them could fall, and, while they were in said condition, the said Litton ordered and directed this plaintiff to go into said pit or excavation and act as pile steerer, and then and there ordered and required others of said employés to operate a crane derrick and others to operate a pile driver, and others to saw off at the ground level said piles so partially driven, and then and there ordered and directed said employés in charge of said crane derrick to lash a chain and rope around the tops of said piles, one by one, and, after the same were so sawed off by said other employés, to raise them one by one by means of said derrick and swing them in turns over said pit or excavation, and it then became, and was, the duty of this plaintiff under his said employment and the order of said Litton to seize the lower end of each pile, and steer it to its proper...