Indiana Union Traction Co. v. Long, No. 21,916.

Docket NºNo. 21,916.
Citation176 Ind. 532, 96 N.E. 604
Case DateNovember 28, 1911
CourtSupreme Court of Indiana

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.


[96 N.E. 605]

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

[96 N.E. 606]

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,...

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10 practice notes
  • Indiana Union Traction Company v. Long, 21,916
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1911
    ...96 N.E. 604 176 Ind. 532 Indiana Union Traction Company v. Long No. 21,916Supreme Court of IndianaNovember 28, From Delaware Circuit Court; Joseph G. Leffler, Judge. Action by Francis M. Long against the Indiana Union Traction Company. From a judgment on a verdict for plaintiff for $ 750, d......
  • Aponaug Mfg. Co. v. Carroll, 33362
    • United States
    • Mississippi Supreme Court
    • October 24, 1938
    ...888; Rolling Stock Co. v. Weir, 11 So. 436; Hurst v. Railroad Co., 63 S.W. 695, 85 Am. St. Rep. 539; Indiana Union Traction Co. v. Long, 96 N.E. 604; Jennett v. Louisville & N. R. Co., 162 F. 392; 3 Labatt, pars. 1009, 1010 and 1011. Mississippi authorities agree that where there is no negl......
  • Myers v. Jefferson Standard Life Ins. Co., (No. 10920.)<SMALL><SUP>*</SUP></SMALL>
    • United States
    • Court of Appeals of Texas
    • January 24, 1925
    ...135 S. W. 430, 432. "An `accident' may be defined as an event happening unexpected and without fault. Indiana Union Traction Co. v. Long, 176 Ind. 532, 96 N. E. 604, 608, or as `an event happening without the concurrence of the will of the person by whose agency it was caused.' State v. Mat......
  • Moorhouse v. Kunkalman, 21,776
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1911
    ...the petitions of appellants, and, consequently, the court did not err in sustaining their motions to strike out and dismiss the petitions. [96 N.E. 604] It is alleged in each of appellees' motions that the petitions did not state sufficient facts to entitle the petitioners to any relief. A ......
  • Request a trial to view additional results
10 cases
  • Indiana Union Traction Company v. Long, 21,916
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1911
    ...96 N.E. 604 176 Ind. 532 Indiana Union Traction Company v. Long No. 21,916Supreme Court of IndianaNovember 28, From Delaware Circuit Court; Joseph G. Leffler, Judge. Action by Francis M. Long against the Indiana Union Traction Company. From a judgment on a verdict for plaintiff for $ 750, d......
  • Aponaug Mfg. Co. v. Carroll, 33362
    • United States
    • Mississippi Supreme Court
    • October 24, 1938
    ...888; Rolling Stock Co. v. Weir, 11 So. 436; Hurst v. Railroad Co., 63 S.W. 695, 85 Am. St. Rep. 539; Indiana Union Traction Co. v. Long, 96 N.E. 604; Jennett v. Louisville & N. R. Co., 162 F. 392; 3 Labatt, pars. 1009, 1010 and 1011. Mississippi authorities agree that where there is no negl......
  • Myers v. Jefferson Standard Life Ins. Co., (No. 10920.)<SMALL><SUP>*</SUP></SMALL>
    • United States
    • Court of Appeals of Texas
    • January 24, 1925
    ...135 S. W. 430, 432. "An `accident' may be defined as an event happening unexpected and without fault. Indiana Union Traction Co. v. Long, 176 Ind. 532, 96 N. E. 604, 608, or as `an event happening without the concurrence of the will of the person by whose agency it was caused.' State v. Mat......
  • Moorhouse v. Kunkalman, 21,776
    • United States
    • Indiana Supreme Court of Indiana
    • November 28, 1911
    ...the petitions of appellants, and, consequently, the court did not err in sustaining their motions to strike out and dismiss the petitions. [96 N.E. 604] It is alleged in each of appellees' motions that the petitions did not state sufficient facts to entitle the petitioners to any relief. A ......
  • Request a trial to view additional results

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