Evansville & T.H.R. Co. v. Holcomb

• Decision Date: 02 January 1894
• Citation: 36 N.E. 39,9 Ind.App. 198
• Court: Indiana Appellate Court
• Parties: EVANSVILLE & T. H. R. CO. v. HOLCOMB.

9 Ind.App. 198

36 N.E. 39

EVANSVILLE & T. H. R. CO.

v.HOLCOMB.

Appellate Court of Indiana.

Jan. 2, 1894.

Appeal from circuit court, Posey county; R. D. Richardson, Judge.

Action by Tillman H. Holcomb against the Evansville & Terre Haute Railroad Company for personal injuries received while in defendant's employ. Judgment for plaintiff. Defendant appeals. Affirmed.

John E. Iglehart, Edwin Taylor, and G. V. Menzies, for appellant. John Brownlee, for appellee.

GAVIN, J.

The appellee, by his complaint, in three paragraphs, sought to recover damages for injuries received by him while working for appellant as a car repairer. The complaint charges that appellant carelessly failed to adopt, use, and enforce proper signals or other means for the protection of the men engaged at work on its repair tracks, which was unknown to appellee, and that appellant carelessly and negligently permitted and caused one of its engines to run against cars upon the repair track, whereby appellee was injured while working thereon. It is further charged, in some of the paragraphs, that it was the duty and custom of the appellant to protect its car repairers, while at work on cars or repair tracks, by putting up a red flag at the entrance to the switch, which was notice to the other employes of the presence of such car repairers, and all engines were forbidden to enter such tracks, where such signals were displayed. In these paragraphs the injuries are said to have been occasioned by reason of the negligent failure of appellant to put up such flag, and thus protect appellee while engaged in work on a car on the repair track, to which he had been especially directed by his superior, the foreman of the repair track. The only questions presented here arise under the motion for new trial, and relate to the correctness of the action of the court in refusing and giving instructions. There is evidence to show that appellee was a car repairer, who had been in the employ of appellant for a short time before the accident; that in appellant's yards there were 21 switch tracks, three of which were repair tracks, upon which repair work was regularly done. These tracks were connected with the others by switches, which were not locked. Appellee had no knowledge of the rules of the company as to engines coming in on repair tracks. There was evidence that it was customary for appellant to put up a red flag to protect the repairers while at work, and also evidence that the only provision made for the safety of the men was a rule requiring that no engine should enter the repair tracks until the car repairers had been notified. Appellee, upon the morning of the accident, was specially directed by his foreman to work on a certain car. This he did, and, while so engaged, an engine ran in upon the track, and set the cars in motion, whereby he was caught and injured. No warning or notice of the approach of the engine was given him, and he knew nothing of it. No flag was up, nor any other means taken for his protection, except there is evidence that the yard master directed a brakeman belonging to the switching crew to give notice to the car repairers as he went down the track. This switchman had other duties to perform at the same time, and the evidence clearly shows that his attention was chiefly and principally devoted to them. He himself does not claim that he gave any special attention to notifying the car repairers, but he seems to have taken it for granted that they understood that the engine was coming in. He does not himself remember to have been directed to give the notice.

The first instruction presented directs the jury that if there was in force in the yards a rule requiring all switching on repair tracks to be done at night, as far as possible, and that, if it had to be done in the daytime, actual notice should be given to all men working upon the repair tracks before a switch engine should enter, then such rule was a proper and reasonable one, and was a discharge by the appellant of its duty to the appellee in the matter of making rules and regulations for the protection of car repairers from the switch engines. It will be observed that no one is designated as the person upon whom the duty of giving the notice should rest. There is an old saying that what is everybody's business is nobody's business. It was the duty of appellant to make reasonable and adequate rules for the protection of its workmen. To require actual notice to the workmen, as in this rule provided, is certainly good, so far as it goes; but we are not prepared to say, as a matter of law, that this was all that was necessary. It was as much the duty of the company to provide reasonably adequate means for giving the notice as to require it to be given. The case in hand furnishes an apt illustration of the inadequacy of such a rule; the brakeman having devolved upon him this duty only as an incident to the principal duties of his position, and performing this duty in a perfunctory, halfway manner, his attention being really given to other matters. There was no error in refusing to give the instruction as asked. Abel v. President, etc., 103 N. Y. 581, 9 N. E. 325;Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514;Railway Co. v. Triplett, 54 Ark. 289, 15 S. W. 831, and 16 S. W. 266; Railway Co. v. Hanning, 131 Ind. 528, 31 N. E. 187; 7 Amer. & Eng. Enc. Law, 832; 1 Shear. & R. Neg. § 202; Reagan v. Railway Co., 93 Mo. 348, 6 S. W. 371.

Objection is made to the instruction authorizing the jury to consider, as an element of damages, expenses of medical attendance. The objection is based upon the claim that such damages are special, and not recoverable unless specially pleaded, because, although the natural, they are not the necessary, result of the injury. Counsel rely upon the case of Teagarden v. Hetfield, 11 Ind. 522, to sustain the position. These damages were recovered for killing a mare, and it was held that the extra labor and expense of feeding two colts which she was suckling were special damages, and, not being the necessary result of the act complained of, they should be specially pleaded, in order to prevent surprise. We do not think this case supplies appellant's needs. Our supreme court has held that it is a duty incumbent upon one who has been seriously injured by another's fault to procure proper medical treatment. Railway Co. v. Falvey, 104 Ind. 409, 3 N. E. 389, and 4 N. E. 908. It also holds that a plaintiff can recover from defendant for services, either medical or by way of nursing, rendered gratuitously. Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. 874;City of Indianapolis v. Gaston, 58 Ind. 224. Where one has been seriously and dangerously injured, with his hips crushed and ribs broken, as alleged in this complaint, medical attendance is in our judgment, a natural, direct, usual, and reasonably necessary result,-one which it is to be expected will be incurred,-and no defendant need be surprised at such proof, in such actions as this, whether the fact be specially pleaded or not. Folsom v. Underhill, 36 Vt. 580;Hopkins v. Railway Co., 36 N. H. 9; Laing v. Colder, 8 Pa. St. 479; Canal Co. v. Graham, 63 Pa. St. 290; Thomp. Neg. 1257; 2 Ror. R. R. 1098. These cases fully sustain the view we have expressed. Counsel refer us to other cases, which follow the strict and technical rules of the common law; e. g. Tomlinson v. Town of Derby, 43 Conn. 562; Taylor v. Munroe, Id. 36,-hold that under allegations that, by reason of the injuries received, the plaintiff had been prevented from attending his ordinary business, it was not permissible to prove what plaintiff was earning. Ward v. Haws, 5 Minn. 440, (Gil. 359,) holds that, under an allegation that he had paid his physician, he could not prove that he had simply incurred a liability not yet paid. O'Leary v. Rowan, 31 Mo. 117, and Railway Co. v. Ware, 84 Ky. 267, 1 S. W. 493, hold that expense of medical attendance must be specially pleaded. The rule followed by these cases is not, however, in harmony with the liberal spirit of our Code, and we deem the other line of authorities founded upon the better reasoning.

The last error urged is based upon the refusal of the court to give the following instruction: “If the jury find from the evidence that the plaintiff was a car repairer, at work, at the time he was injured, in the yards of the defendant railroad company, in the city of Evansville, working upon a repair track, dedicated by the defendant for purposes of repair track solely, and that a crew composed of engineer and switchmen, with an engine, were engaged in switching cars in said yard, and placing one or more cars upon said repair track for the purpose of repair, and if you further find that the defendant company had in force, previous to, and at the date of, the injury complained of in the complaint, a rule and regulation requiring personal notice to be given to all car repairers at work on said track a reasonable time before any switch engine entered upon such track, and if you find that such a rule was a reasonable one, if you so find, and if you further find that the yard master of the defendant in charge of said yard, or foreman of said engine, directed one Frank Thorne, a switchman, to go upon said repair track and notify all men working thereon that such engine was about to go upon the track, and that they should take notice of such fact, and protect themselves from danger on account of said engine going upon said track; that said Thorne was a competent man, and a fellow servant with plaintiff, engaged as switchman in assisting as one of a switching crew to place cars on said track to be repaired by the car repairers, and, further, that it was the duty of such Thorne or such switchman to give said notice, and that said yard master reasonably believed that such Thorne would perform such duty of giving notice to notify all men upon said track, including the plaintiff, diligently and...