Gillenwater v. Madison & Indianapolis R.R. Co.

• Decision Date: 29 November 1854
• Citation: 5 Ind. 350
• Parties: Gillenwater v. The Madison and Indianapolis Railroad Company
• Court: Indiana Supreme Court

5 Ind. 350

Gillenwater v. The Madison and Indianapolis Railroad Company

Supreme Court of Indiana

November 29, 1854

APPEAL from the Jefferson Circuit Court.

The judgment is reversed with costs. Cause remanded.

Stephen C. Stevens, for the appellant.

Joseph G. Marshall and William McKee Dunn, for the appellees.

OPINION

Stuart J.

Trespass for injuries received on board the defendants' cars.

After setting out sundry introductory matters, the plaintiff alleges, that in May 1851, the railroad company employed him to frame and build a bridge on their road across Sugar creek that while engaged in the work, the company directed him to proceed on their cars to Greenwood, and assist in loading timbers for the bridge; that while thus on their cars as directed, the defendants so carelessly managed and ran the same, that they were thereby thrown off the track down a bank; by means of which his right hand was fractured and permanently injured, so as forever to disable him from pursuing his business of house-carpenter, &c. The damages are laid at 10,000 dollars.

The company filed five pleas. The first was the general issue.

The second and fourth pleas are in substance the same; admitting the plaintiff's injury, and that it was done on their cars as alleged, by the carelessness of the servants of the company having charge of the train; but that said servants (conductor and engineer) were competent and skillful &c., and that the negligence, &c., were wholly unauthorized by and entirely without the leave, sanction or consent of the defendant.

The fourth plea contains an additional averment, that at the time when, &c., the plaintiff was also the servant of the company.

The third and fifth pleas are in substance the same as the second, with the additional averment that the company had used reasonable diligence in the selection of her said servants.

General demurrer to each of the special pleas overruled, and judgment on demurrer for the company.

The sufficiency of these pleas to bar the plaintiff's action, is the only question presented.

The position assumed in the second, third and fifth pleas is tacitly abandoned in the argument. That the negligent act was done without the sanction of the company, or that their servants were carefully selected with reference to their competence, did not, either singly or collectively, constitute a bar to the action. It is in vain that the person employed is skillful if he neglect to use that skill. Public carriers of passengers not only engage for the competent skill of their employees, but for its faithful and continued application. Story on Agency, § 452; 1 Black. Comm. 432, note; Stokes v. Saltonstall, 13 Peters 181. The servants of a corporation are no more and no less than the servants of natural persons. Whatsoever is negligently done or omitted, is, as to the public, the employer's act. Whether the employer be a natural or artificial person, can make no difference. For servants and agents are but the means employed, and what they do, the mode of action of the employer for the time being. It would be dangerous in the extreme to apply one rule to corporations and another to individuals. As to passenger carriers by stage, the law is well settled: they are liable for the utmost care of very cautious persons. Barker v. Havens, 17 Johns. 234; 8 Am. D. 393; 13 Peters 181, supra. Railroad companies are not to be distinguished from stage-coach proprietors in the degree of diligence required and the extent of liability incurred. "If even disobedience of a servant could be set up by a railroad company as a defence, when charged with negligence," the remedy of the injured party would in most cases be illusive, and the danger to the public enhanced. The disobedience of orders of the servant entrusted, is the ipsa negligentia which produces the mischief. Philadelphia & Reading R. R. Co. v. Derby, 14 Howard 468. The same considerations of public policy demand that the law should be applied as rigidly to railroad companies as to any other species of passenger carriers.

Nor does it make any difference as to the liability of the company for the negligence of their servants that Gillenwater was traveling on the road, at the time, paying no fare. So was Derby in the case above cited. 14 Howard, supra.

The demurrers to the second, third and fifth pleas were well taken, and should have been sustained.

The whole case, then, turns on the additional averment in the fourth plea. That averment is, that the persons by whose negligence the injury was produced, were the fellow-servants of the plaintiff, engaged in the same general employment; and it is therefore contended that he had no recourse on the common employer. In support of this position, Angell on Carriers 563, and some late decisions not yet officially reported, are cited.

To properly appreciate the doctrines advanced by text writers, it is often necessary to go back to the authorities on which they rely. And this is more especially advisable, if the questions are new, or the authorities conflicting. As the question raised is new in this state, and of vast importance in itself, it will be safer to go back at once to the leading cases. Those chiefly relied upon by Angell are Priestley v. Fowler, 3 Mees. and Welsby 1; Farwell v. The Boston and Worcester Railroad Company, 4 Metcalf 49; 38 Am. D. 339; Murray v. The South Carolina Railroad Company, 1 McMullen 385; 36 Am. D. 268.

The facts in Priestley v. Fowler were these. Fowler directed Priestley, his servant, to accompany and assist A., another of Fowler's servants, in a van conducted by A., and containing goods carried for hire. The van was overloaded, and broke down, causing serious injury to the plaintiff. The ground of recovery set up by Priestley was the want of proper care in loading the van. The English Court of Exchequer held, that there was no right of action; "because," in the language of the Court, "of the inconvenience and absurdity which would flow from such a principle." One of the examples of its absurdity put by the Court is, that a master would be liable to his servant for the negligence of a coservant, the chambermaid, if she put him into a damp bed.

Whatever may be thought of the argument or the illustration, the case at bar is so clearly distinguishable from that as scarcely to need analysis. Priestley and his co servant, the conductor of the van, were intimately associated in the business entrusted to them by the common employer. Priestley must have been aware of the capacity of the van; indeed the presumption seems to be, that he had assisted in overloading it--at least, to the extent of riding in it. And the doctrine growing out of the facts of the case is that the servant can not maintain an action against his employer for an injury, which his own negligence, together with that of his co-servants, had directly contributed to produce.

On the contrary, Gillenwater and those in charge of the cars had no duty to perform common to both, except, perhaps, the loading, and, as incident thereto, the unloading, of the timber. And it is not claimed that either the loading or unloading had anything to do in producing the accident. It is charged distinctly on the one side, and admitted on the other, that it was the careless running of the cars which caused the injury. In that act the plaintiff did not participate. During the passage to and from Greenwood and Sugar creek, Gillenwater had no control either of the cars or freight--no duty relating to them to perform. As to the duties belonging to the delinquent engineer and conductor, he was not in a position from which it could be implied that he contributed to the result. So that admitting the doctrine of Priestley v. Fowler, to the extent to which the facts before the Court warranted the decision, it does not apply to the present case.

In Farwell v. The Boston Railroad Company, the facts were, that Farwell was employed by the company as engineer on the passenger train. Whitcomb, another servant of the company, being in their employment as a switch-tender, and well known to the plaintiff as faithful and trustworthy, carelessly left a switch in a wrong position as Farwell's train was passing; whereby the cars were run off the track, and Farwell received the injury complained of. The Court held that he had no right of action against the company. It was called "an action of new impression, which, of itself, was held to be a strong argument against it." Much reliance was also placed on Priestley v. Fowler, supra. The additional reasons on which the Court proceeded were, that the servant contracts with reference to the risks of the employment; that he accordingly receives a compensation in wages for those risks; and that it would be contrary to public policy to permit a recovery, the tendency of which would be to produce carelessness among servants and agents, to the danger of the public.

So clearly is the case at bar distinguished from the Farwell case, that we are not called upon either to approve or dissent from the doctrine there held. The business of house-carpenter, even as applied to the specific case of building a railroad bridge, is an employment under the company, too remote to be embraced within the rule laid down in that case. To constitute the parties co-servants of the company, it was held essential that the object to be accomplished should be one and the same, the employer the same, and that the persons employed should derive their authority and compensation from the same source. When all these elements concur, it is, says the Court, "extremely difficult to distinguish what constitutes one department and what a different department of duty. It would vary with the circumstances of each case." It is thus...