G. H. Hammond Company v. Mason

• Decision Date: 01 May 1895
• Docket Number: 1,323
• Citation: 40 N.E. 642,12 Ind.App. 469
• Parties: THE G. H. HAMMOND COMPANY v. MASON, ADMINISTRATOR
• Court: Indiana Appellate Court

40 N.E. 642

12 Ind.App. 469

THE G. H. HAMMOND COMPANY v. MASON, ADMINISTRATOR

No. 1,323

Court of Appeals of Indiana

May 1, 1895

From the Lake Circuit Court.

Judgment affirmed.

W. Olds and C. F. Griffin, for appellant.

E. D Crumpacker and P. Crumpacker, for appellee.

GAVIN J. ROSS, J., absent.

OPINION

GAVIN, J.

The appellee, as administrator of the estate of George Austin deceased, sued to recover damages for the death of his decedent.

From the complaint it appears that the appellant was the owner of a large number of cars, which it used in connection with its business; that it was also the owner of repair shops in which these cars were inspected, repaired and made over; that one Aber was the manager and superintendent of the said repair shop and tracks connected therewith, with the general supervision of the inspection and repairing of all of appellant's cars; that he had complete and full control of the damaged cars and the repairs thereon and of all the servants of appellant who worked in said shops, about fifty in number; that among said Aber's duties he was to inspect at all times all of appellant's cars that were in its shops or on its tracks with a view to ascertain their fitness for use, and to examine particularly for all defects in such cars and to mark the same with chalk, whereby each defect would be noticeable to the laborers employed thereon; that Austin was a common laborer under Aber whose duty it was to aid and assist in repairing appellant's cars at the direction of Aber, or some of the foremen under him; that on April 18, 1892, one of appellant's cars, badly out of repair, was upon one of its tracks near the repair shops; that Aber inspected the car and marked various defects, but instead of making a thorough inspection he did this in a careless and negligent manner and negligently and carelessly omitted to ascertain and mark certain defects, and, among these, a certain broken kingbolt and center plates, which were essential to support the car when lifted off the track; that Aber ordered Austin to repair and replace certain bolts, etc., which he marked on the car, in doing which it became necessary to raise up one end of the car. After this was done he went under the car, as was necessary, for the purpose of unfastening some rods to enable him to make the required repairs. While so engaged the car fell down upon him by reason of the broken kingbolt and center plates thereby crushing him to death; "that it was then and there a part of defendant's duty and a part of said superintendent's duty to ascertain and mark all defects on the said car and distinguish them so that said Austin might know and have warning thereof, but which said defendant and said Superintendent Aber carelessly and negligently omitted and failed to do, and so omitted and failed to discover and mark said kingbolt and center plates broken and out of repair; that said broken kingbolt and center plates could and might have been readily discovered by the exercise of reasonable diligence upon the part of said Superintendent Aber before said injury; that said Austin was fully informed of the duty of said defendant and its said superintendent to so examine, inspect and mark said cars at the time of and before the injury hereinafter mentioned, and believed that said duty had been fully performed and had no knowledge to the contrary, and fully relied upon its performance; that said Austin did not know and had no means of knowing at the time he went under the car and was injured, as aforesaid, or before that time, that the kingbolt and center plates were broken and out of repair, but, on the contrary, believed that the defendant and its superintendent, Aber, had performed their duty, and that there was no danger whatever in going under said car, as it was necessary for him to do, as aforesaid, and which he did do while in the line of his duty;" that said Austin went under the car and was injured, believing and relying upon the fact that all defects had been marked and designated; and was so injured wholly without any fault or negligence upon his own part and by reason of the negligence of said defendant and its superintendent, Aber, in failing to mark said kingbolt and center plate as broken and out of repair.

There were also proper averments as to heirship, damages, etc.

It is most earnestly contended by counsel that this pleading was not sufficient to withstand a demurrer for want of facts. The position taken is that Austin's injury, under the facts averred, was due wholly to the negligence of Aber, who was but a fellow-servant in the employment of a common master, and that, therefore, the familiar general rule is applicable, whereby the master is exempt from liability for injuries accruing to one servant by reason of a fellow-servant's negligence.

In this view of the complaint we can not concur. On the contrary, as we construe it, that duty of the master was violated which requires him to exercise reasonable care to furnish his servant with a safe place to work.

The law in Indiana is thoroughly established that it is the duty of the master to use reasonable care to provide a safe working place for his servants; that this duty can not be by the master devolved upon any other person so as thereby to absolve the...