Hoosier Stone Co. v. McCain, Administrator

• Decision Date: 08 October 1892
• Docket Number: 15,279
• Citation: 31 N.E. 956,133 Ind. 231
• Parties: Hoosier Stone Company v. McCain, Administrator
• Court: Indiana Supreme Court

31 N.E. 956

133 Ind. 231

Hoosier Stone Company v. McCain, Administrator

No. 15,279

Supreme Court of Indiana

October 8, 1892

Petition for a Rehearing Overruled December 16, 1892.

From the Lawrence Circuit Court.

Judgment reversed, with instructions to award a new trial.

M. F Dunn and G. G. Dunn, for appellant.

J. W Buskirk, J. Riley and J. Giles, for appellee.

OPINION

Elliott, J.

The appellee, as the administrator of the estate of James A. McCain, deceased, seeks to recover damages for the death of the deceased, which, it is charged, was caused by the negligence of the appellant. The complaint alleges that the deceased was in the service of the appellant and was injured while in the line of his duty, without any fault on his part.

It is insisted by the appellant's counsel that the third paragraph of the complaint is bad, for the reason that it affirmatively shows that the injury to the appellee's intestate was caused by the negligence of a co-employe. We can not agree with counsel in the construction which they place upon the complaint, although it is true that the pleading is not entirely beyond criticism. The averment is that the "defendant, by its agents and employes acting under the orders of its superintendent and foreman," committed the wrongful act which caused McCain's death. This averment, taken in connection with others, must be deemed sufficient, as it charges the negligent act to be that of the defendant. It is true that it is alleged that the act was performed through agents and employes, but this does not render it any the less the act of the appellant, since, as it is a corporation, it must do whatever it does through agents.

An answer containing several paragraphs was filed by the appellant. The first paragraph is the general denial, and the second and third paragraphs are regarded by us as argumentative denials. They do not confess and avoid, inasmuch as they do not give color of right to the plaintiff's complaint, but assert, in effect, that he never had any cause of action. An answer which does not concede color of right is not a plea in confession and avoidance. The answers we are considering really confess no material facts, save the relationship between the parties, and the happening of the accident. They fully deny, although in an affirmative form, that the injury was attributable to the negligence of the defendant. It is, indeed, difficult to conceive how an answer can be considered as in confession and avoidance, where, as here, the plaintiff's negligence is averred and the defendant's negligence expressly denied, unless new affirmative matter is pleaded, such as payment, accord and satisfaction, or the like. There is certainly no new matter of that nature in any of the paragraphs of the answer. It is settled that there is no available error in sustaining a demurrer to special paragraphs of an answer, in a case where the general denial is pleaded, and all the evidence admissible under the affirmative answer is admissible under the general denial. See authorities cited in Elliott's Appellate Procedure, sections 637 (669).

The fourth paragraph alleges that the intestate was injured upon a car furnished to the appellant by the Louisville, New Albany & Chicago Railroad Company, and that his injury was caused by a defective brake, which the railroad company negligently suffered to become insufficient and dangerous. The prayer is that the plaintiff be compelled to make the railroad company a party to the action. There was no error in sustaining the demurrer to the paragraph. If, as the complaint alleges, the defendant was guilty of a culpably negligent breach of duty owing to its employe, the fact that another person was also negligent would not compel the plaintiff to make that person a party to the action, since it is an elementary rule that the plaintiff may sue one or more of several joint tortfeasors. Nor would the fact, conceding the answer to show such fact, that the negligence of the railroad company concurred with that of the appellant in producing the injury, defeat the action, nor require the presence of the railroad company as a party, inasmuch as a wrong-doer is not exculpated because the negligence of another concurred in producing the injury to the plaintiff. See authorities cited in Elliott on Roads and Streets, p. 451, 452, 631. If the negligence which caused the injury to the appellee's intestate was solely that of the railroad company, then, clearly enough, the appellant would not be liable; but the defense that there was no culpable negligence on the part of the appellant was admissible under the general denial, so that the concession that the answer shows that there was no negligence on the appellant's part would not lead to a reversal.

The contention of counsel that a venire de novo should have been awarded, because the special verdict does not find all of the facts, can not prevail. Even at common law a special verdict was not ill because it did not state all the facts, although it was ill if it did not embrace all the issues; but under the peculiar rule which prevails in this jurisdiction, a special verdict is not ill even though it may not cover all the issues in the cause. Authorities cited in Elliott's Appellate Procedure, section 759.

The material facts stated in the special verdict are, in substance, these: On the 14th day of June, 1888, James A. McCain was in the service of the defendant, and had been in such service for three months prior to that date. For the purpose of moving and shipping stone quarried by the defendant, a railroad switch was constructed from the main line of the Louisville, New Albany & Chicago Railroad Company to the defendant's quarry. The switch was constructed by the defendant, and so constructed as to "make a considerable grade up to and into the quarry of the defendant." In "consequence of such grade, cars upon the part of the switch which was located in the quarry, if not carefully handled and guarded, would run, by reason of their own weight, with great force and speed out of the quarry and down toward the main line of the railroad." On the forenoon of the 14th day of June, 1888, the defendant caused to be placed on its switch four freight cars. Two of the cars were loaded with heavy blocks of stone, and were held in position on the switch by one brake and by "one chock, placed under the wheels, or trucks." About forty feet distant from the cars referred to, another car loaded with coal for use in the quarry was standing on the switch. On the day named, the appellee's intestate was, by the defendant's superintendent and employes, put to work unloading the coal from the car standing on the track. While engaged in this work, and while his back was toward the two cars loaded with stone, "the defendant, by its agents and employes, without giving any notice to plaintiff's intestate of their intention to do so, caused the two cars to move and run down the grade with speed, force and violence against the car upon which the plaintiff's decedent was at work." The collision threw the decedent from the car, and he was run over by one of the two moving cars and killed. At the time the two cars were put in motion, the defendant, its superintendent, agents, and employes, "knew that the decedent was engaged in unloading coal from the car, and gave him no notice or warning of danger until the moving cars were within forty feet of the one on which he was at work. There were two cars further in the quarry than those which came into collision with the car the decedent was engaged in unloading. Between these two cars and those which collided with the coal car there was a space of nine or ten feet. In order to complete the loading of one of the cars which stood further in the quarry, it became necessary to move it, and it was started down grade toward the two loaded cars; and it was allowed, by the defendant and its agents, to descend and come into collision with the two loaded cars, and this threw the cars against the one on which the intestate was at work. On the day of the intestate's death, the appellant's superintendent was present at the quarry. Edward Marsey was the "boss," or foreman, of one of the defendant's derricks, and he was ordered, by the superintendent, to load the cars, and pointed out the stone which was to be placed on the cars. The superintendent was present at the time of the accident, and there was nothing to prevent him from observing all that was done, and nothing to prevent him "from seeing and knowing the manner in which the cars were chocked or braced." No inspection was made of the cars, chocks, braces or brakes; nor was any examination made to discover whether the brakes were properly set. The noise made by the decedent, while at work unloading the coal, rendered "him less able to hear the approach of the cars or any signals," and other noises made by machinery in operation near by increased the difficulty of hearing. The decedent had no knowledge of the condition of the cars standing on the grade above the one on which he was at work, nor had he any notice or knowledge of the intention to move such cars, nor had he any notice of their movement, until about the instant of the collision.

We find no great difficulty in reaching the conclusion that the special verdict, although not beyond criticism, shows that the superintendent stood in the employer's place. It sufficiently appears, upon a fair and reasonable construction of the facts stated, that the superintendent represented the corporation of which the appellee's intestate was an employe. He was placed in charge of the quarry and the connected business, and in conducting and controlling the quarry and the connected business; he was in law and in fact occupying the...