Indianapolis Street Railway Company v. Kane

• Decision Date: 03 April 1907
• Docket Number: 20,641
• Citation: 80 N.E. 841,169 Ind. 25
• Parties: Indianapolis Street Railway Company v. Kane
• Court: Indiana Supreme Court

80 N.E. 841

169 Ind. 25

Indianapolis Street Railway Company v. Kane

No. 20,641

Supreme Court of Indiana

April 3, 1907

Rehearing Denied June 28, 1907, Reported at: 169 Ind. 25 at 40.

From Hancock Circuit Court; Edward W. Felt, Judge.

Action by Luke Kane against the Indianapolis Street Railway Company. From a judgment on a remittitur of $ 5,000 from a verdict for $ 15,000, defendant appeals. Appealed from Appellate Court under § 1337j Burns 1901, subdv. 3, Acts 1901, p. 565 § 10.

Affirmed.

F Winter, W. H. Latta and Marsh & Cook, for appellant.

Elliott, Elliott & Littleton and Wymond J. Beckett, for appellee.

OPINION

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. Defendant's roadmaster, who was duly authorized by the defendant, ordered trackmen, among them the appellee, to the bridge to make repairs. Arriving at the bridge late in the afternoon, it was found that of the two tracks over the bridge the east one 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, but, 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, all under the direct supervision of the defendant's roadmaster. The latter, when the first timber was placed, ordered the plaintiff to clear a place for a 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 Railroad 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 Railroad Company, leaving the Indianapolis Street Railway Company the sole defendant. At 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 plaintiff, from which this appeal is prosecuted.

The errors assigned in this court are: (1) "Overruling the demurrer to the complaint;" (2) overruling the motion for a new trial; (3) overruling defendant's motion for judgment on answers to interrogatories.

Appellee insists that the first assignment 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 errors, 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 (1893), 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 Chicago, etc., R. Co. v. Walton (1905), 165 Ind. 642, 74 N.E. 988; Smith v. Smith (1886), 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 assignments of errors 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 one of the employers' liability act (§ 7083 Burns 1901, Acts 1893, p. 294), which reads as follows: "That every railroad or other corporation, except municipal, operating in this State, shall be liable for damages for personal injury suffered by any employe while in its service, the employe 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 employe 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 roadmaster, 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 roadmaster 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. (1899), 152 Ind. 680, 52 N.E. 391; City of Ft. Wayne v. Ft. Wayne, etc., R. Co. (1897), 149 Ind. 25, 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 involving duties of the master. New Pittsburgh Coal, etc., Co. v. Peterson (1894), 136 Ind. 398, 43 Am. St. 327, 35 N.E. 7; Dill v. Marmon (1905), 164 Ind. 507, 69 L. R. A. 163, 73 N.E. 67.

But the question we have before us is whether the facts alleged bring the case within the meaning of the second subdivision of § 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. Co. v. Wagner (1899), 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 Louisville, etc., R. Co. v. Wagner, supra, the test of liability under the second subdivision of the statute is threefold: "(1) Was the offending servant clothed by the employer with authority to give orders to the injured servant that the latter was bound to obey? (2) 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? (3) 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. Chicago, etc., R. Co. (1902), 159 Ind. 82, 59 L. R. A. 792, 64 N.E. 605; American Rolling Mill Co. v. Hullinger (1904), 161 Ind. 673, 67 N.E. 986; Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 102 Am. St. 185, 69 N.E. 669; Republic Iron & Steel Co. v. Berkes (1904), 162 Ind. 517, 70 N.E. 815.

The complaint alleges that the plaintiff was a trackman in defendant's employ, and on the day of the accident he with the other trackmen, was ordered by the defendant's roadmaster to the broken Fall creek bridge to make temporary repairs. At the time the roadmaster 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 roadmaster, 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 erected a heavy oak prop, ten by twelve inches by sixteen feet long, under the west rail of the defendant's track midway between the north and south piers of the bridge, said roadmaster thereupon ordered the plaintiff, in accordance with his authority from the defendant, to clear away the debris and prepare a footing, at a designated spot, for a 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 roadmaster in failing to nail or in any way to...