Indiana Union Traction Company v. Long
| Decision Date | 28 November 1911 |
| Docket Number | 21,916 |
| Citation | 96 N.E. 604,176 Ind. 532 |
| Parties | Indiana Union Traction Company v. Long |
| Court | Indiana Supreme Court |
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, defendant appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.
Affirmed.
James A. VanOsdol, William A. Kittinger, Warren & Warren and Louis B. Ewbank, for appellant.
Wilbur Ryman, Harry Long and George H. Koons, for appellee.
This action was brought by appellee, a motorman on one of appellant's street-cars, to recover damages for personal injuries sustained when his car left the track. The action was based on the theory that the street-car left the track because the rotten ties gave way, and that appellant had knowledge of the condition of the track and the ties in time to repair them, but that appellee had no knowledge of such defective condition.
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 eleven, given by the court, which states that "the statute provides," etc., setting out the first clause of § 1 of the employers' liability act of 1893 (Acts 1893 p. 294, § 8017 Burns 1908), on the ground "that the act does not apply to a city street railway, or that if it does it is unconstitutional."
Said clause is a reenactment by the legislature of the common law, as it existed in this State when said clause was passed, in reference to the employers' liability under the conditions stated therein. Cleveland, etc., R Co. v. Scott (1902), 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 employers' liability act. 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 the employers' liability act of 1893 applies to street railways, and if it does, whether it is unconstitutional as to street railways. See, however, Indianapolis, etc., Transit Co. v. Andis (1904), 33 Ind.App. 625, 633-638, 72 N.E. 145, and cases cited; Funk v. St. Paul City R. Co. (1895), 61 Minn. 435, 63 N.W. 1099, 29 L. R. A. 208, 52 Am. St. 608; Lundquist v. Duluth St. R. Co. (1896), 65 Minn. 387, 67 N.W. 1006; Sams v. St. Louis, etc., R. Co. (1903), 174 Mo. 53, 73 S.W. 686, 61 L. R. A. 475; Stocks v. St. Louis Transit Co. (1904), 106 Mo.App. 129, 79 S.W. 1176; Godfrey v. St. Louis Transit Co. (1904), 107 Mo.App. 193, 81 S.W. 1230; Johnson v. Metropolitan St. R. Co. (1904), 104 Mo.App. 588, 78 S.W. 275; McLeod v. Chicago, etc., R. Co. (1904), 125 Iowa 270, 101 N.W. 77; Riley v. Galveston City R. Co. (1896), 13 Tex. Civ. App. 247, 35 S.W. 826; Fallon v. West End St. R. Co. (1898), 171 Mass. 249, 50 N.E. 536; Norfolk, etc., Traction Co. v. Ellington's Admr. (1908), 108 Va. 245, 61 S.E. 779, 17 L. R. A. (N. S.) 117.
Appellant complains of instruction nine, given by the court, to the effect that notice of the defect in the track, given to the track foreman who had charge of repairing the tracks, and whose duty it was to keep the tracks in repair, if proved, was notice to appellant; and of instruction thirteen, 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 that 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., R. Co. v. Barker (1908), 169 Ind. 670, 676, 17 L. R. A. (N. S.) 542, 83 N.E. 369; Indiana, etc., R. Co. v. Snyder (1895), 140 Ind. 647, 652, 653, 39 N.E. 912, and cases cited; 26 Cyc. 1081, 1104, 1335a, and cases cited; 3 Elliott, Railroads (2d ed.) § 1276.
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. (1902), 159 Ind. 82, 85, 59 L. R. A. 792, 64 N.E. 605; Dill v. Marmon (1905), 164 Ind. 507, 521, 69 L. R. A. 163, 73 N.E. 67, and cases cited; Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 695, 63 L. R. A. 460, 68 N.E. 262, and cases cited.
One of the duties appellant owes to its employes is to exercise ordinary care to keep and maintain its roadbed and track in a reasonably safe condition for use and this duty is a continuing one. Chicago, etc., R. Co. v. Wilfong (1910), 173 Ind. 308, 312, 90 N.E. 307, and cases cited; Chicago, etc., R. Co. v. Barker, supra; 26 Cyc. 1102, 1112; 3 Elliott, Railroads (2d ed.) §§ 1268, 1278.
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's becoming unsafe on account thereof. City of Fort Wayne v. Coombs (1886), 107 Ind. 75, 88, 57 Am. Rep. 82, 7 N.E. 743, and cases cited; Indiana Car Co. v. Parker (1885), 100 Ind. 181, 193, 194, and cases cited.
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 these 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 nine and thirteen, therefore, are correct statements of the law, at least so far as they go.
It is insisted, however, by appellant, that said instruction nine 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 the accident occurred that caused appellee's injury.
Appellant cites the case of Malott v. Sample (1905), 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. It is the law in this State, in a case like the one before us, that the employe 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. 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., R. Co. v. Wilfong, supra, 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. The court in another instruction said, in effect, to the jury that if appellant had no knowledge of said defects in the track, and they could not have been discovered by the exercise of ordinary care in time to be repaired before appellee's injury, then 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., R. Co. v. Wilfong, supra, and authorities cited.
As said instructions nine and thirteen 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, App. Proc. § 736, and cases cited; Moore v. Shields (1889), 121 Ind. 267, 271, 23 N.E. 89; Fitzgerald v. Goff (1884), 99 Ind. 28, 40, 41; Rauck v. State (1887), 110 Ind. 384, 389, 11 N.E. 450; New Castle Bridge Co. v. Doty (1907), 168 Ind. 259, 266, 79 N.E. 485, and cases cited. What we have already said disposes of the objections to instructions sixteen, seventeen, twenty-one and thirty.
Appellant complains of instruction thirty-three, 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...
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