Indiana Union Traction Company v. Benadum

• Decision Date: 08 January 1908
• Docket Number: 5,970
• Citation: 83 N.E. 261,42 Ind.App. 121
• Parties: INDIANA UNION TRACTION COMPANY v. BENADUM
• Court: Indiana Appellate Court

83 N.E. 261

42 Ind.App. 121

INDIANA UNION TRACTION COMPANY v. BENADUM

No. 5,970

Court of Appeals of Indiana

January 8, 1908

Rehearing denied June 12, 1908.

From Delaware Circuit Court; Joseph G. Leffler, Judge.

Action by Charles Benadum against the Indiana Union Traction Company. From a judgment for plaintiff, defendant appeals.

Reversed.

James A. Van Osdol, Louis B. Ewbank, W. A. Kittinger and Rollin Warner, for appellant.

Walter Ball and George H. Koons, for appellee.

OPINION

WATSON, J.

Appellee sued appellant for an injury to his racing mare incurred while said mare was being loaded upon one of appellant's cars for shipment. There was a trial by jury, a general verdict for appellee, assessing his damages in the sum of $ 500, and judgment on said verdict.

Appellant assigned as errors the overruling of the demurrers to each of the two paragraphs of the complaint, and the overruling of the motion for a new trial. The overruling of the demurrers was not discussed by appellant in its brief, therefore said assignments are waived. Rudisell v. Jennings (1906), 38 Ind.App. 403, 77 N.E. 959.

Appellant contends that the negligence of appellee's own servants contributed to the injury, thereby releasing said traction company from any liability therefor. It was clearly shown that the actual work of putting said mare into the car was done by persons who were under contract of employment with appellee. If such employes were acting as the servants of appellee in doing this work the question of contributory negligence must be considered. But if such acts were done in the capacity of servants for appellant their negligence will not relieve appellant from liability.

It is well settled that where the employes of one party are engaged in the performance of acts for another, which acts the latter is under a duty to perform, the relation of servant is sustained to the party whose duty it is to perform such work, if such party has the control of the execution thereof. Indiana Iron Co. v. Cray (1898), 19 Ind.App. 565; Ohio, etc., R. Co. v. Davis (1864), 23 Ind. 553, 85 Am. Dec. 477; Crockett v. Calvert (1856), 8 Ind. 127; Clapp v. Kemp (1877), 122 Mass. 481; Byrne v. Kansas City, etc., R. Co. (1894), 61 F. 605, 9 C. C. A. 666, 24 L. R. A. 693; Powell v. Virginia Construction Co. (1890), 88 Tenn. 692, 701, 13 S.W. 691, 17 Am. St. 925; Olive v. Whitney Marble Co. (1886), 103 N.Y. 292, 300, 8 N.E. 552; Wood, Master and Serv. (2d ed.), § 317.

The duty to load live stock, in the absence of a special contract or special circumstances, rests primarily upon the carrier. 4 Elliott, Railroads (2d ed.), § 1552; London, etc., Ins. Co. v. Rome, etc., R. Co. (1894), 144 N.Y. 200, 39 N.E. 79, 43 Am. St. 752.

The evidence shows that appellant's agent solicited appellee to ship said mare from Elwood, Indiana, to Muncie, Indiana, by way of said traction line. It was so agreed on Wednesday. The agent wished to ship the mare on Friday, but to this appellee objected, because he could not be present at that time to attend to the loading of the animal. To this objection the agent replied that he would look after the mare as if she were his own, and that appellee could trust her with him. He testified that his duties were to solicit and look after the transportation of freight. He was instructed by appellee to "go to the boys and get the mare."

Said agent directed those in charge of the mare where to take her for loading. He was present at the loading, pushed a chute out of the car, and helped to place said chute in position. Appellee's employes, who were the persons regularly in charge of the mare, saw that the chute was too pliant, and protested to said agent against attempting to load her, to which the agent replied: "I will stand it if she hurts herself." He was present during the entire time, observing the work. After he made the remark about becoming responsible for any injury, they attempted to load her into the car, but because the chute was not sufficiently rigid, its vibrations, caused by the animal's weight, caused her to fall, and she was permanently injured.

The injury occasioned by the negligence or carelessness of the agent in loading the mare would render the appellant liable therefor, since the facts show that he was the person in charge, and the one who had the right, and whose duty it was, to control the loading of this animal. Under the law the fact as to whether such agent participated in the actual work is of little importance except to show a right of control. It was agreed and understood between appellee and appellant's agent that appellant was to have charge of the loading. Appellee's employes recognized this fact, and refused to do such work until they were assured that appellant would be responsible for any injury which might occur. In doing these acts, therefore, these persons were doing what appellant was under a duty to perform. They did them under the supervision of an agent who was there for that purpose, and who had specifically agreed so to do. In these particular acts they thus became the servants of appellant, and their negligence cannot be attributed to appellee as constituting contributory negligence by his servants.

Appellant insists further that there was reversible error by the court in instructing the jury that the assessment list of appellee, introduced by appellant, was to be considered only upon the question of the ownership of the mare and not as pertaining to her value. It is urged that such evidence was admissible as an admission by appellee to contradict his testimony as to the value of the animal.

It is well settled that assessment lists of personal property are admissible as evidence to prove the ownership of such property, by the person assessed, at the time of assessment. Painter v. Hall (1881), 75 Ind. 208; Lefever v. Johnson (1881), 79 Ind. 554; Burket v. Pheister (1888), 114 Ind. 503, 16 N.E. 813; Towns v. Smith (1888), 115 Ind. 480, 16 N.E. 811; Milburn v. Phillips (1894), 136 Ind. 680, 693, 34 N.E. 983.

In the case of Lefever v. Johnson, supra, the court said: "The list was a statement in writing, signed in the firm name and sworn to by appellants; it was made out under the direction of a public officer, in pursuance of a duty enjoined by law, and is competent evidence tending to show the amount and kind of property owned by the assessed at that time."

But appellee contends that such lists are not admissible to contradict the...