Cleveland, Cincinnati, Chicago And St. Louis Railway Company v. Foland

• Citation: 91 N.E. 594,174 Ind. 411
• Decision Date: 20 April 1910
• Docket Number: 21,651
• Parties: Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Foland
• Court: Supreme Court of Indiana

91 N.E. 594

174 Ind. 411

Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Foland

No. 21,651

Supreme Court of Indiana

April 20, 1910

Rehearing Denied June 24, 1910, Reported at: 174 Ind. 411 at 417.

From Delaware Circuit Court; Joseph G. Leffler, Judge.

Action by William H. Foland against the Cleveland, Cincinnati Chicago and St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 4,000, defendant appeals. Transferred from Appellate Court under § 1394 Burns 1908, subd. 2, Acts 1901 p. 565, § 10.

Reversed.

C. E Cowgill, L. J. Hackney, Frank L. Littleton and A. B. Everhart, for appellant.

Bagot & Pence, for appellee.

OPINION

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 employe and servant of appellant, as a laborer engaged in the work of bridge building, and with other employes of appellant was engaged in preparing the foundation for abutments for a bridge; that plaintiff and the other employes with whom he was so engaged constituted a force of men called a "bridge gang;" that defendant appointed William Litton superintendent, foreman and boss over said gang, and delegated to him 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 it, to order, direct and control the service and work of each member of said gang, including this plaintiff, and to order, direct and command each of said employes, including this plaintiff, as to what particular service he was to perform and the particular place he should occupy in performing said work, and it was the duty of each employe, including this plaintiff, and he was 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 January 3, 1905, there were at said place a great number of piles, each consisting of a heavy piece of timber about forty feet in length and from eight to twelve inches in diameter, which had previously been driven into the ground about half the length, leaving about twenty feet in length of each pile projecting above the 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, stayed and secured that none of them could fall, and while they were in said condition said Litton ordered and directed this plaintiff to go into said pit and act as pile steerer, ordered and required other employes to operate a crane derrick, others to operate a pile-driver, others to saw off at the ground level said piles so partially driven, and then and there ordered and directed said employes in charge of said crane derrick to lash a chain and rope around the tops of said piles, one by one, and after they were so sawed off by said other employes 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 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 place to be driven, and when so placed it was to be lowered by said derrick and then driven by said employes in charge of said pile-driver; that the place where plaintiff was required to perform said duty was so located that if said piles so partially driven should fall they would fall against and upon him; that plaintiff and all said employes obeyed said Litton, and while plaintiff and said other employes were so engaged, as aforesaid, said Litton ordered, directed and required said employes, so engaged in sawing off said piles to saw all of them without waiting for the derrick men, which said men so engaged in sawing at once did, leaving only a small part of each pile unsawed, and not leaving sufficient amount to support the weight of said piles or to prevent them from falling, without the support of said stays at the top; that after said piles were so sawed, and plaintiff was so engaged in said duty at the point where he was so ordered and required to be, said Litton ordered and required others of said employes, without the knowledge or consent of plaintiff, to go above and to the tops of said piles, and with crowbars pry loose said brace and stay, which they did, all without the knowledge or consent of plaintiff and without any notice to him whatever; that as soon as said brace and stay was loose, as aforesaid, one of said pilings, of great weight, fell upon and against plaintiff while he was at the point where he was so directed and required to be, whereby his left leg was crushed and broken in such a manner that it became necessary to amputate it.

Then follows a description of his injuries and his loss and damage. It is further...