Indiana Union Traction Co. v. Long

• Decision Date: 28 November 1911
• Docket Number: No. 21,916.,21,916.
• Citation: 176 Ind. 532,96 N.E. 604
• Parties: INDIANA UNION TRACTION CO. v. LONG.
• Court: Indiana Supreme Court

176 Ind. 532

96 N.E. 604

INDIANA UNION TRACTION CO.

v.LONG.

No. 21,916.

Supreme Court of Indiana.

Nov. 28, 1911.

Appeal from Circuit Court, Delaware County; J. H. Leffler, Judge.

Action by Francis M. Long against the Indiana Union Traction Company. From a judgment for plaintiff, defendant appealed to the Appellate Court, and the case was transferred. Affirmed.

Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908.

James A. Van Osdol, Louis B. Ewbank, W. A. Kittinger, and Warner & Warner, for appellant. Wilbur Ryman, Harry Long, and Geo. H. Koons, for appellee.

MONKS, J.

This action was brought by appellee, a motorman on a street car of appellant's street railway in Muncie, Ind., to recover damages for personal injuries sustained when his car left the track. The action was based upon the theory that the street car leaving the track was caused by rotten ties giving way, and that appellant had knowledge of the condition of the track and ties at that place in time to have repaired it, and that appellee had no knowledge of the defective condition of said ties and street railway track. A trial of the cause resulted in a verdict in favor of appellee, and, over a motion for a new trial, judgment was rendered in his favor.

The only error assigned and not waived calls in question the action of the court in overruling appellant's motion for a new trial. Appellant complains of instruction No. 2, given by the court, which states that “the statute provides,” etc., setting out the first clause of section 1 of the employer's liability act of 1893, being section 8017, Burns' 1908, on the ground “that the act does not apply to a city street railway, and, if it does it is unconstitutional.”

[1] Said first clause of the employer's liability act is a re-enactment of the Legislature of the common law as it existed in this state when said clause was passed in reference to the employer's liability under the conditions stated therein. Cleveland, etc., Ry. Co. v. Scott, 29 Ind. App. 519, 525, 526, 64 N. E. 896. There is nothing in said instruction or in any other instruction given by the court to the effect that this case is governed by the employer's liability act.

[2] As appellant is liable at common law under the conditions stated in the first clause of the statute, the error, if any, in giving said instruction is harmless. It is not necessary, therefore, to determine whether or not the employer's liability act of 1893 applies to street railroads, and, if it does whether or not the same is unconstitutional as to street railroads. See, however, Indianapolis, etc., Co. v. Andis, 33 Ind. App. 625, 633-638, 72 N. E. 145, and cases cited; Funk v. St. Paul, etc., Co., 61 Minn. 435, 63 N. W. 1099, 29 L. R. A. 208, 52 Am. St. Rep. 608;Lundquist v. Duluth, etc., Co., 65 Minn. 387, 67 N. W. 1006;Sams v. St. Louis, etc., Co., 174 Mo. 53, 73 S. W. 686, 61 L. R. A. 475;Stocks v. St. Louis, etc., Co., 106 Mo. App. 129, 79 S. W. 1176;Godfrey v. St. Louis, etc., Co., 107 Mo. App. 193, 81 S. W. 1230;Johnson v. Metropolitan, etc., Co., 104 Mo. App. 588, 78 S. W. 275;McLeod v. Chicago, etc., Co., 125 Iowa, 270, 101 N. W. 77;Riley v. Galveston, etc., Co., 13 Tex. Civ. App. 247, 35 S. W. 826;Fallon v. West End, etc., Co., 171 Mass. 249, 50 N. E. 536;Norfolk, etc., Co. v. Ellington, 108 Va. 245, 61 S. E. 779, 17 L. R. A. (N. S.) 117.

[3] Appellant complains of instruction No. 9, given by the court, to the effect that notice of the defect in the track given to the track foreman having charge of repairing the tracks, and whose duty it was to keep the tracks in repair, if proven, was notice to appellant; and of instruction No. 13, given by the court, to the effect that knowledge of defects in the track by the track foreman whose duty it was to keep the tracks in repair would be notice to appellant. It is well settled in this state that duties which the master owes his servants cannot be delegated to another, so as to relieve him from responsibility for the nonperformance or imperfect performance thereof. If the performance of such duties is delegated to an agent, such agent is a vice principal as to such duties, and his negligence in such matters is the negligence of the master for which the master is responsible. Chicago, etc., Co. v. Barker, 169 Ind. 670, 676, 83 N. E. 369, 17 L. R. A. (N. S.) 542;Indiana, etc., Co. v. Snyder, 140 Ind. 647, 652, 653, 39 N. E. 912, and cases cited; 26 Cyc. 1081, 1104, 1335a, and cases cited; 3 Elliott on Railroads (2d Ed.) § 1276.

[4] Whether a person is a vice principal or a fellow servant so as to render the master liable for his negligence by which another is injured does not depend on his rank, but on the character of the duties conferred upon him. Thacker v. Chicago, etc., R. Co., 159 Ind. 82, 85, 64 N. E. 605, 59 L. R. A. 792;Dill v. Marmon, 164 Ind. 507, 521, 73 N. E. 67, 69 L. R. A. 163, and cases cited; Southern, etc., R. Co. v. Harrell, 161 Ind. 689, 695, 68 N. E. 262, 63 L. R. A. 460, and cases cited.

[5] One of the duties appellant owes to its employés is to use ordinary care and diligence to furnish a reasonably safe roadbed and track upon which to run its cars. This duty is a continuing one, and the master is required to exercise ordinary care to keep and maintain the roadbed and track in a reasonably safe condition for use. Chicago, etc., Co. v. Wilfong, 173 Ind. 311, 312, 90 N. E. 307, and cases cited; Chicago, etc., Co. v. Barker, supra, 169 Ind. 676, 83 N. E. 369, 17 L. R. A. (N. S.) 542; 26 Cyc. 1102, 1112; 3 Elliott on Railroads (2d Ed.) §§ 1268, 1278.

[6] Ordinary care required appellant to take notice of the liability of wooden ties to decay from time and use, and to take such measures as ordinary care and skill dictate to guard against the track becoming unsafe on account of the decaying of wooden ties used in the construction thereof. City of Ft. Wayne v. Coombs, 107 Ind. 75, 88, 7 N. E. 743, 57 Am. Rep. 82, and cases cited; Indiana Car Co. v. Parker, 100 Ind. 181, 193, 194, and cases cited.

[7] It is said in 26 Cyc. 1147: “Notice to a servant or agent who stood in the position of vice principal and who was charged with the duties of the master, the neglect of which occasioned the injury, is notice to the master.” If appellant's track foreman was its agent to maintain and keep the track in repair, he as to such work was a vice principal, and represented appellant, and notice to him as to the condition of the track was notice to appellant. Instructions 9 and 13, therefore, are correct statements of the law, at least as far as they go.

It is insisted, however, by appellant that said instruction No. 9 was erroneous under the evidence because the only evidence of notice to appellant's track foreman was that a motorman reported the track in bad order the night before the injury, and that the track foreman went on duty the next morning about an hour before appellee's injury-citing Malott v. Sample, 164 Ind. 645, 74 N. E. 245, where it is held that, before the master can properly be charged with negligence for failure to repair, it is necessary to show that the master had knowledge actual or constructive of the defect. There is nothing in the case cited to show that the instruction was erroneous.

[8] It is the law in this state in a case like the one before us that the employé must prove, not only that the alleged defect existed, but that the employer had knowledge thereof actual or constructive long enough before the injury to have repaired the defect or to have given warning to the employe, and that he failed to do so.

[9] It is held that the rule of constructive knowledge of the employer applies only to such defects as he might have discovered by the exercise of ordinary care and diligence. Chicago, etc., Co. v. Wilfong, 173 Ind. 306, 312, 90 N. E. 307, and authorities cited. It may be that appellant did not have time to repair said track after said notice was received by the track foreman, and before appellee was injured, but it does not necessarily follow that appellant did not have time to warn appellee of said defect before he was injured.

[10] The court in another instruction said, in effect, to the jury that if appellant had no knowledge of said defects in the track, and the same could not be discovered by the exercise of ordinary care in time to have repaired said defect before appellee's injury, that appellant was not guilty of negligence, and the verdict should be for appellant. This instruction was more favorable to appellant than the law authorized because it ignored entirely appellant's duty to warn appellee of said defect if ascertained before the injury and there was time to give such warning even if there was not time to repair the track. Chicago, etc., Co. v. Wilfong, supra, 312, and authorities cited.

[11] As said instructions 9 and 13 are correct as far as they go, they cannot be made the basis of available error. To make the failure to go the proper length available error, the complaining party must make a request at the proper time and in due form for a full and complete instruction upon the particular point. Elliott's App. Proc. § 736, and cases cited; Moore v. Shields, 121 Ind. 267, 271, 23 N. E. 89;Fitzgerald v. Goff, 99 Ind. 28, 40, 41;Rauck v. State, 110 Ind. 384, 389, 11 N. E. 450; Newcastle Bridge Co. v. Doty, 168 Ind. 259, 266, 79 N. E. 485, and cases cited. What we have already said disposes of the objections to instructions 16, 17, 21, and 30.

[12] Appellant complains of instruction No. 33, which reads as follows: “The doing of an act by the plaintiff which materially contributed to his injuries, even if you should find from the evidence that he did any such act, would not constitute contributory negligence, unless you should find from the evidence that he was in fault in doing such act.” It is an essential requirement that the act or omission of the person injured must be a negligent act or omission. It is not sufficient...