Columbia Creosoting Company v. Beard

• Decision Date: 06 October 1909
• Docket Number: 6,682
• Citation: 89 N.E. 321,44 Ind.App. 310
• Parties: COLUMBIA CREOSOTING COMPANY ET AL. v. BEARD, ADMINISTRATOR
• Court: Indiana Appellate Court

89 N.E. 321

44 Ind.App. 310

COLUMBIA CREOSOTING COMPANY ET AL. v. BEARD, ADMINISTRATOR

No. 6,682

Court of Appeals of Indiana

October 6, 1909

From Hancock Circuit Court; Robert L. Mason, Judge.

Action by Clarence M. Beard, as administrator of the estate of John B. Gordon, deceased, against the Columbia Creosoting Company and another. From a judgment on a verdict for plaintiff for $ 5,000, defendants appeal.

Reversed.

John B Elam, James W. Fesler, Harvey J. Elam and William W. Cook for appellants.

Eli F Ritter, for appellee.

RABB J. ROBY, P. J., C.

OPINION

RABB, J.--

Appellant Columbia Creosoting Company is a corporation engaged in the business of treating railroad ties with creosote. Appellant Cravens was the superintendent, having in charge the directing of the work and workmen. The company had an extensive plant, which consisted of a yard, containing several acres of ground, traversed by numerous metal tracks, designed for trucks to run upon. In the yard there were also two large, steel structures in the form of tanks. These structures were provided with heavy iron doors, and were traversed by a track for the trucks to run in upon. The company also used a large number of trucks to carry the ties on, and each of the steel structures was large enough to hold fifteen of these trucks loaded with ties. For the purpose of propelling these trucks over the tracks, an electric motor, attached to a dummy-car, was used.

The method of proceeding with the work was to load the trucks with ties to be treated with creosote, attach them in a train together, by means of a steel cable passing underneath the trucks, the end of which terminated in a hook designed to hook into an attachment on the dummy-car. When a number of the trucks were loaded, they were run into one of the tanks, the motor-car unhooked, a movable section of the track at the entrance to the tank removed, the doors tightly closed, and the ties subjected to the creosoting treatment for several hours. The doors were then opened, and the trucks were removed. The motor-car was also furnished with a wildlass, to which was attached a steel rope with a loop in the end, and when the cable that attached the trucks together was not long enough to reach the motor-car the hook on the cable was hooked into this loop, and thus attached to the motor-car.

The company employed a large number of men in carrying on its work, some to handle the ties, two to operate the motor-car and trucks--the motor-car being supplied with appliances by which its speed and direction could be controlled--and one employe was known as the motorman, whose place of work was on the motor-car, and whose duty it was to control its movements; another was known as the switchman, and he attended to switching the motor-car and trucks, attaching the same to and detaching it from, the train; two were known as door-men, and their duties required them to attend to the doors in the retorts, and to see that the trucks were properly placed in the retorts, and that the doors were properly closed and fastened.

The appellee's decedent was in the company's service in the capacity of door-man, and was killed while in the act of detaching a number of loaded trucks that had been pushed into the tank, by having his head caught between the dummy-car and the ties on the truck next to it.

This action is brought to recover damages for the decedent's death, claimed to have been caused by the negligence of defendants. The complaint is in one paragraph. The separate demurrer of each of the defendants to the same was overruled, and an answer filed by each defendant, a jury trial had, resulting in a verdict against both defendants. With the verdict, the jury returned answers to interrogatories addressed to them by the court. Each defendant moved for judgment on the answers to interrogatories, which motion was by the court overruled, and judgment in favor of appellee was rendered on the verdict.

Each appellant separately assigns as error, among other things, the action of the court below in overruling such appellant's demurrer to the complaint. The complaint, after stating the nature of the business in which appellant company was engaged, and the method and means employed in the conduct of the business, and the fact that appellant Cravens was superintendent, having charge and direction of the work and the employes, and that appellee's decedent was engaged in appellant company's service, avers that it was the duty of said decedent to unhook the cable connecting the motor-car to the trucks loaded with ties, after the same had been propelled by the motor-car into the tank; that on the occasion in question, after the trucks loaded with ties had been pushed into the tank, decedent stepped in between the engine and cars, "in the usual, safe and necessary manner, to perform his duty of unhooking the cable, and after he had done so he signalled said motorman to back said engine away; * * * that said motorman, being inexperienced, incompetent and intoxicated, was careless and negligent, all of which said defendants knew, but none of which said plaintiff herein knew; that said motorman suddenly, carelessly and negligently pulled the device which ran the motor, causing the car to start and run suddenly against said decedent, crushing him between the motor-car and the trucks, all of which occurred without any negligence on the part of decedent."

It is also averred in the complaint that the regular motorman had been, by the defendant company's orders, replaced by one who was inexperienced and incompetent; that, prior to the accident, appellant Cravens, in his capacity of superintendent, had caused a sixteen-gallon keg of beer to be brought on the factory grounds, as a treat for the appellant company's employes; that said employes drank the beer and became intoxicated, and at the time the accident happened the motorman was intoxicated, all of which was caused by the negligence of the defendant in permitting the beer to be brought on the factory grounds and drank.

The point is made against the sufficiency of the complaint, that it fails to show that the decedent was not at the time of the accident fully cognizant of all the facts upon which the charge of negligence is predicated and that the risks arising therefrom were not therefore assumed by him. It is a well-settled rule of law, governing the relations of employer and employe, that the employe assumes all risks incident to the service in which he is engaged which includes risk of injury arising from the negligence of fellow servants--save where the rule has been modified by a statutory enactment--and all dangers of which the employe has actual or constructive knowledge. It is the master's duty to exercise ordinary care to employ competent servants, competency in this case meaning both...