Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Perkins

• Decision Date: 08 December 1908
• Docket Number: 21,107
• Citation: 86 N.E. 405,171 Ind. 307
• Court: Indiana Supreme Court
• Parties: Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Perkins

86 N.E. 405

171 Ind. 307

Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Perkins

No. 21,107

Supreme Court of Indiana

December 8, 1908

From Benton Circuit Court; James T. Saunderson, Judge.

Action by Emery Perkins against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 25,000, defendant appeals.

Reversed.

Leonard J. Hackney, Charles M. Snyder and Crane & McCabe, for appellant.

Fraser & Isham and Addison C. Harris, for appellee.

OPINION

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 the 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; that on and before December 19, 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 the plaintiff to serve 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 said freight-train, over and upon a railroad track and right of way in and through Benton county, Indiana; that the defendant, on said day, occupied and possessed a right of way, more than one hundred feet wide, and a railroad track in and through Benton county Indiana, 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 side-track, in the town of Fowler, Benton county, Indiana that said building was constructed of heavy timbers, lumber and the like, and used as a storehouse for coal; that said building so closely occupied the right of way up to the side-track that an ordinary freight-car, passing thereby, approximated the same within a few inches; that said building had, long before said December 19, 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 twenty years of age, of perfect physical and mental development and strength, but 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 a freight-train of the defendant; that when he was employed by the defendant, it 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 anywise add to the hazard of his duties; that, in a pretended compliance with said contract, the defendant gave to plaintiff written descriptions 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 employes of the road, neither had the plaintiff any opportunity to judge of the proximity of said building to said track, until the wrongs and injuries hereinafter complained of; that on December 19, 1904, in the night-time, the plaintiff came to the town of Fowler on a freight-train of the defendant, consisting of many freight-cars, an engine and tender, and a coach for the accommodation of the crew, which train was manned, operated and controlled in the manner following: 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, as vice-principal, had 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, there was one freight-car, equipped with brakes that could be 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; that 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 brake was 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 December 19, 1904, 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 on said car 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 order and direction to the engineman, put said car in motion, and ran the same past said structure, in the darkness, and thus and thereby caught the plaintiff between its said car and said structure, and broke his leg, his foot 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 were broken, a leg severed, and his skull fractured; that the plaintiff was wholly without fault, and was not negligent either in going upon said car, or in performing the acts 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 one of § 8017 Burns 1908, Acts 1893, p. 294, § 1. It is an elementary principle that masters owe their servants the duty of providing for them a reasonably safe place in which to work, and of exercising ordinary care to keep such place in reasonably safe condition during the employment; and for a negligent breach of this duty, resulting in injury to a servant, while in the exercise of due care, by reason of any defect in the condition of its ways, works, plant, tools and machinery, the master will be held liable. The law imposes no duty on the master to warn and instruct employes, under no disabilities, of dangers which are patent to persons of ordinary intelligence, but one who undertakes to do work which exposes him to such obvious dangers assumes the risk of injury. Appellant's counsel assail the first paragraph of complaint with a volley of criticisms, many of them purely technical, but some of which are substantial, and fatal to its sufficiency in law.

A well-settled rule of pleading requires that facts material and necessary to constitute the cause of action declared upon be directly averred, and that no essential element be shown by way of recital or be left to inference. Only inferences necessarily arising from facts alleged will be indulged in determining the sufficiency of a pleading when tested by demurrer. Chicago, etc., R. Co. v McCandish (1907), 167 Ind. 648, 79 N.E. 903; Laporte Carriage Co....