Indianapolis & St. L. Ry. Co. v. Watson
Decision Date | 27 December 1887 |
Citation | 114 Ind. 20,14 N.E. 721 |
Parties | Indianapolis & St. L. Ry. Co. v. Watson. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Marion county; L. C. Walker, Judge.
Action by Watson, plaintiff, to recover for personal injuries against the defendant railroad company. Defendant appealed.J. T. Dye, for appellant. Shepard, Elane & Martindale, for appellee.
Stated in a condensed form, the material allegations of the complaint are these: The appellant maintained a freight-yard near the city of Indianapolis, in which there were many tracks and switches, used for handling locomotives and cars. On the fifteenth day of October, 1885, the appellee was in the service of the appellant as a night-watchman. His duties, as such watchman, were to go about and over the yard at all hours of the night, and look after the property of his employer, and to wake up, at the proper times, its employes. The appellant knew that it was necessary that the watchman should be provided with a light, in order that he might properly discharge his duties, and at the same time protect himself from danger, yet the appellant refused to provide a light. A day or two after the appellee had been so employed, he notified his employer that it was necessary for him to have a light in order to discharge his duties and to protect himself. His employer promised to procure a light for him in a short time, and requested him to continue in the performance of his duties. Relying on this promise, he did continue in the appellant's service, but the light was not provided as promised. On the night of November 1, 1882, he was injured, without any fault on his part, while in the discharge of his duties, and his injury was caused by the wrong and negligence of the appellant in failing to provide him with a lantern.
The fourth instruction given by the court reads thus: ’ Appellant's counsel dissect this instruction, and seizing on the words, “without objection or complaint,” assail it as erroneous. This course cannot be successfully pursued. The instruction must be taken in connection with the others of the series, and cannot be considered as standing alone. An instruction is not to be judged by taking mere fragments, dislocated from their proper connections, nor is one instruction to be taken as complete in itself. This instruction must, as is well settled, be taken as an entirety, and in connection with the others referring to the same subject, and immediately connected with it. City v. Gaston, 58 Ind. 224;Deig v. Morehead, 110 Ind. 451, 11 N. E. Rep. 458.
We must, therefore, take the fourth instruction in connection with that bearing upon the same subject, which is as follows:
If these instructions, taken together, express the law, then the appellant has no just cause of complaint, even though the isolated clause which counsel detach and assail should, in itself, be regarded as an inaccurate statement of the law. Our conclusion is that, when the instructions are so taken, they express the law as favorably to the appellant as it had a right to ask. The first of these instructions does not assert that those employes who continue in the master's service, “without objection or complaint,” do not assume the usual risks of the service. It simply asserts that all who do continue, “without objection or complaint,” do assume the risks incident to the service; but it by no means asserts that those who do complain and object do not also assume those risks. Possibly, the instruction, standing alone, may be incomplete; but it cannot be justly said to be erroneous, since it may be true that all who continue in a service without objection do assume the risks, as well as those who do make the objections. But, however this may be, it is sufficiently evident that the fourth instruction is made complete by the sixth, and there is, therefore, no available error.
The next step takes us into a field of stubborn conflict. There are authorities holding that, where the employe objects to the safety of the appliances furnished him, the employer is liable if the employe is injured while in the employer's service, and within a reasonable time after urging the objection. Manufacturing Co. v. Morrissey, 22 Amer. Law Reg. 574; Thorpe v. Railroad Co., 89 Mo. 650, 58 Amer. Rep. 120, 2 S. W. Rep. 3; 2 Thomp. Neg. 1009. A careful examination of the other authorities relied on by appellee's counsel has satisfied us that they do not decide all that it is asserted that they do. In Holmes v. Clarke, 6 Hurl. & N. 349, the master neglected to fence a dangerous place, as an act of parliament required him to do, and a servant was awarded a recovery for injuries caused by this negligence. Leaving out of consideration the element introduced by the positive legislation, although it is by no means clear that the act of parliament did not exert an important influence, we yet conclude that the case does not sustain appellee's position. Railway Co. v. Locke, ante, 391, (this term.) This conclusion we rest upon the words of the opinion in that case, cited by counsel: “Where machinery is required by an act of parliament to be protected. so as to guard against danger to persons working it, if a servant enters into the employment when the machinery is in a state of safety, after it has become dangerous, in consequence of the protection being decayed or withdrawn, and complains of the want of protection, and the master promises to restore it, but fails to do so, we think he is guilty of negligence, and that if any accident occurs to the servant, he is responsible.” The promise of the master formed, it is obvious, an important factor in the case, and exerted a controlling influence on the judgment of the court. There are some expressions in Greene v. Railway Co., 31 Minn. 248, 17 N. W. Rep. 378, that seem to support the appellee's contention, but the ultimate decision is against him. It was there said: “If the emergencies of the master's business require him temporarily to use defective machinery, we fail to see what right he has, in law or natural justice, to insist that it shall be done at the risk of the servant, and not his own, when, notwithstanding the servant's objection to the machinery, he has requested or induced him to continue in its use under a promise thereafter to repair it.” At another place the court, in speaking of the general rule, asserts that the master is liable, where the servant gives notice of the defect, and the “master thereupon promises that they shall be remedied.” The utmost that can be deduced from the case under immediate mention is that the servant may continue in the service a reasonable time after the promise to make the machinery or appliances safe, and that if he is injured within that time he may maintain an action. The cases of Kroy v. Railroad Co., 32 Iowa, 357;Greenleaf v. Railroad Co., 33 Iowa, 52;Muldowney v. Railway Co., 39 Iowa, 615;Lumley v. Caswell, 47 Iowa, 159; and Way v. Railroad Co., 40 Iowa, 341,-do not, as we understand them, go further than to hold that the master is not liable where the servant continues in his service with notice of its danger, unless he has induced the servant to do so by an express or implied promise. In Way v. Railroad Co., supra, it was held error to refuse an instruction containing this clause: “If a brakeman on a railroad knows that the materials with which he works are defective, and he continues his work, without objection, and without being induced by the master to believe that a change will be made, he is deemed to have assumed the risks of such defects.” This, we think, implies that there must be a promise, either in express words or arising, by fair implication, from the conduct of the master. Going back to the case of Kroy v. Railroad Co., we find the principle upon which the subsequent decisions rest, for they are all built...
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