Indianapolis St. Ry. Co. v. Kane

• Decision Date: 03 April 1907
• Docket Number: No. 20,641.,20,641.
• Citation: 80 N.E. 841,169 Ind. 25
• Parties: INDIANAPOLIS ST. RY. CO. v. KANE.
• Court: Indiana Supreme Court

169 Ind. 25

80 N.E. 841

INDIANAPOLIS ST. RY. CO.

v.KANE.

No. 20,641.

Supreme Court of Indiana.

April 3, 1907.

Appeal from Circuit Court, Hancock County; E. W. Felt, Judge.

Action by Luke Kane against the Indianapolis Street Railway Company. From a judgment of the Appellate Court (73 N. E. 1135), affirming a judgment for plaintiff, defendant appeals. Affirmed.

F. Winter, Marsh & Cook, and W. H. Latta, for appellant. Elliott, Elliott & Littleton and W. J. Beckett, for appellee.

HADLEY, J.

May 11, 1899, the Central Avenue Bridge over Fall creek, in the city of Indianapolis, broke and fell while the gravel train of appellant was passing over it. Trackmen were ordered to the bridge to make repairs, among them the appellee, by defendant's road master, who was thereto duly authorized by the defendant. Arriving at the bridge late in the afternoon, it was found that the east of the two tracks over the bridge was suspended from pier to pier, holding with it that part of the bridge that was fastened to the ties. Footmen were passing over the suspended structure, which being manifestly dangerous it was decided to put a prop, or pillar, under each rail-midway between the piers, to relieve, temporarily, the danger to passing footmen. Two heavy timbers were brought, a footing prepared, and one piece raised to an upright position and forced into place under the west rail under the direct supervision of the defendant's road master. The latter, when the first timber was placed, ordered the plaintiff to clear a place for another like prop under the east rail. While engaged in obeying the order, the timber that had just been set fell, and inflicted upon appellee the injuries for which he sues. The action was brought in the Marion superior court against the Citizens' Street Railway Company, and the Indianapolis Street Railway Company. Each of the defendants separately demurred to the complaint for insufficiency of facts, both of which were overruled, and several exceptions reserved. Each of the defendants then filed a separate answer of general denial. Subsequently the action was dismissed as to the Citizens' Street Railway Company, leaving the Indianapolis Street Railway Company the sole defendant. In this stage of the proceedings, the venue was changed to the Hancock circuit court, where the case was tried and a verdict and judgment rendered in favor of appellee, from which this appeal is prosecuted.

The errors assigned in this court are: First, the “overruling of the demurrer to the complaint”; second, overruling of the motion for a new trial; and, third, overruling of defendant's motion for judgment on answers to interrogatories. Appellee insists that the assignment of error presents no question as to sufficiency of the complaint; his point being that, since the record shows that the appeal is from the judgment of the Hancock circuit court, unless so specified in the assignment of error, this court cannot take cognizance of exceptions to the decisions appearing to have been made by the Marion superior court. A similar question was before the court in McKeen v. Porter, 134 Ind. 483, 34 N. E. 223, and it was there ruled that a general assignment-that is, an assignment that does not specify the court by which the ruling was made, as in this case-will be held sufficient when the record clearly shows the ruling and the court by which it was made. We are satisfied with the former ruling and adhere to it in this case. The cases of Railroad Co. v. Walton, 165 Ind. 642, 74 N. E. 988,Smith v. Smith, 106 Ind. 43, 5 N. E. 411, and others of their class are not authority upon the question, as these cases plainly rest upon the fact that the assignment of error charged the ruling complained of to a particular court, and the record showed that the court named had made no such ruling.

The complaint rests upon the second subdivision of section 1 of the Employer's Liability Act (section 7083, Burns' Ann. St. 1901), which reads as follows: “That every railroad or other corporation, except municipal, operating in this state, shall be liable for damages for personal injuries suffered by any employé while in its service, the employé so injured being in the exercise of due care and diligence, in the following cases: *** Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employé at the time of the injury was bound to conform, and did conform.” It is urged against the complaint that it affirmatively shows that the act complained of as negligent was the act of a fellow servant. The act referred to is that of the road master, who, as charged, knowing the prop that had just been raised under the bridge was unfastened and liable to fall, ordered the plaintiff, who was ignorant of the unfastened and dangerous condition of the prop, to proceed with the preparation of the foundation and footing for a like prop under the other rail. In view of the allegations of the complaint, appellant's argument might be sound if we were dealing with the rules of the common law, for it must be conceded that under the old law the road master, or foreman, and trackmen working with him, as a general rule, while engaged together in performing the ordinary duties of their employment, are fellow servants and subject to co-servant principles. Hodges v. Standard Wheel Co., 152 Ind. 680, 52 N. E. 391, 54 N. E. 383;City of Ft. Wayne v. Railroad Co., 149 Ind. 21, 48 N. E. 342. And this would be true even though it should be shown that the foreman was expressly authorized by the master to give orders and directions to those working with him, with respect to the performance of their duties, in all matters not invoking duties of the master. Coal & Coke Co. v. Peterson, 136 Ind. 398, 35 N. E. 7, 43 Am. St. Rep. 327;Dill v. Marmon, 164 Ind. 507, 515, 73 N. E. 67, 69 L. R. A. 163.

But the question we have before us is whether the facts alleged bring the case within the purview of the second subdivision of section 7083, supra. Appellee makes no claim that his complaint is good at common law, and admits that it must be good under the statute, or he has no case. The provision of the statute relied upon imposes upon railroad corporations liability in certain cases that is distinctly in derogation of the common law. Louisville, etc., R. R. Co. v. Wagner, 153 Ind. 420, 53 N. E. 927. The essence of the statute is that when the master installs one of his servants as the superior of others, with power to direct and supervise the latter in the performance of their duties in the master's service, and with the power to exact obedience, such superior, while exercising the power of command, and ordering workmen into places where they might not voluntarily go, or when ordering them to perform a work in a particular place or in a particular manner, in accordance with his arbitrary commands, in giving such working orders to his fellows, stands in the shoes of the master, and if the obeying servant, while engaged in executing the orders of such superior, himself in the observance of due care and diligence, becomes injured by any negligent act or omission of the former, then the master is liable. As expressed by this court in Railroad Co. v. Wagner, 153 Ind. 423, 53 N. E. 927: The test of liability under the second subdivision of the statute is threefold: “First. Was the offending servant clothed by the employer with authority to give orders to the injured servant that the latter was forced to obey? Second. Did the injury result to the latter from the negligence of the former while conforming to an order of the former that the injured servant was, at the time, bound to obey? Third. Was the injured party at the time of the injury in the exercise of due care and diligence?” Generally, on the construction of the second subdivision of said section, see Thacker v. Railroad Company, 159 Ind. 82, 64 N. E. 605, 59 L. R. A. 792;Rolling Mill Co. v. Hullinger, 161 Ind. 673, 67 N. E. 986, 69 N. E. 460;Transit Company v. Foreman, 162 Ind. 94, 69 N. E. 669, 102 Am. St. Rep. 185;Steel Company v. Berkes, 162 Ind. 520, 70 N. E. 815.

The complaint charges that the plaintiff was in the employ of the defendant as a trackman, and on the day of the accident he, with the defendant's other trackmen, was ordered by the defendant's road master to the broken Fall Creek Bridge to make temporary repairs. At the time the road master had full authority from the defendant to order said trackmen, including the plaintiff, where to work, and what work each should do at any place along the defendant's road; and the plaintiff was under the authority of the road master, and was bound to conform to the orders and instructions issued by him concerning and in furtherance of the repairs and maintenance of the defendant's railroad and tracks. The other trackmen of the defendant having completed the erection of a heavy oak prop, 10 by 12 inches by 16 feet long, under the west rail of the defendant's track midway between the north and south piers of the bridge, said road master thereupon ordered the plaintiff, in accordance with his authority from the defendant, to clean away the débris and prepare a footing, at a designated spot, for another like prop under the east rail of said track, to which order the plaintiff was bound to conform. While plaintiff was engaged in obeying and conforming to said order and in doing said work at the place, and in the manner required by said order, and while in the exercise of due care and diligence, by reason of the negligence of the road master in failing to nail or in any way fasten the top of said prop to the timbers under which it rested, and of his negligence in failing to make such prop fast and secure from falling, and of his failure to observe due care and caution to prevent the prop from falling and injuring the plaintiff while engaged in conforming to said orders, said prop glided out from under said...