Indianapolis Traction & Terminal Co. v. Mathews

• Decision Date: 31 January 1912
• Docket Number: No. 21,711.,21,711.
• Citation: 177 Ind. 88,97 N.E. 320
• Court: Indiana Supreme Court
• Parties: INDIANAPOLIS TRACTION & TERMINAL CO. v. MATHEWS.

177 Ind. 88

97 N.E. 320

INDIANAPOLIS TRACTION & TERMINAL CO.

v.MATHEWS.

No. 21,711.

Supreme Court of Indiana.

Jan. 31, 1912.

Appeal from Circuit Court, Hamilton County; Meade Vestal, Judge.

Action by Joseph E. Mathews against the Indianapolis Traction & Terminal Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions.F. Winter, W. H. Latta, M. E. Foley, Ralph K. Kane, and Thomas E. Kane, for appellant. George W. Galvin, Shirts & Fertig, and Sullivan & Knight, for appellee.

MONKS, J.

This action was brought by appellee to recover damages for personal injury resulting from a collision of two cars, which at the time were being run over the street railroad lines of appellant in the city of Indianapolis. Appellee, who was at the time of the collision an employé of appellant as motorman and had charge of one of said cars as motorman, bases his right to recover upon the common-law liability. The complaint was in two paragraphs. A separate demurrer for want of facts to each paragraph thereof was overruled by the court. Answer by general denial. A trial of said cause resulted in a general verdict for appellee. The jury also answered interrogatories submitted to them by the court. Over a motion of appellant for a judgment in its favor on the answers to the interrogatories, notwithstanding the general verdict and a motion for a new trial, judgment was rendered on the general verdict in favor of appellee.

The first and second errors assigned call in question the action of the court in overruling the separate demurrer to each paragraph of the complaint. Appellee claims that the judgment was rendered on the second paragraph of the complaint, and that, even if the court erred in overruling the demurrer to the first paragraph, the ruling was harmless. The averments of said second paragraph of complaint show: That, upon the line of appellant's street railroad tracks on West Washington street, “it has and had its car shops wherein it repairs its own cars and the cars of divers other street and interurban railway companies; and many spur tracks or switches connected with said track in Washington street entered said shops from said street, and were used by defendant in moving cars in and out of said shops from and to said track in said street. ***” That on the day of the injury “he was the motorman of a car of said defendant which was propelled along and over West Washington street, in the city of Indianapolis, and was in the line of his duty as such motorman and at his proper place in the front vestibule of said car, and ran the same along said West Washington street at or near the shops of said defendant where it had cars under repair, and where it was receiving and discharging repaired cars of other street railway companies. That said plaintiff was due in front of said shops in the propelling of his car at about the hour of 7 o'clock and 8 minutes a. m., which was well known to defendant, and he was required to pass said shops and the said switches and cuts entering said shops along and over the tracks on said West Washington street. That upon said morning the atmosphere was extremely foggy, and objects could not be discerned or discovered at any great distance in front of the car being operated by said plaintiff, and cars on said switches and entering on said main track from said shops could not be seen or discerned by plaintiff in front of the car so operated by him without the display of strong signal lights on such cars, or without a conductor or flagman at the intersection of such tracks to give warning of their approach, all of which the defendant at the time well knew. That plaintiff was moving said car along and over said tracks of defendant at or near said shops in a careful and cautious manner, when said defendant negligently and carelessly threw a car of the Terre Haute, Indianapolis & Eastern Traction Company out upon the main track over which this plaintiff was operating said car, and carelessly and negligently caused said interurban car which was 60 feet long and weighed many tons to collide with the car being operated by this plaintiff. That defendant carelessly and negligently failed to give plaintiff any notice or warning of the approach of said interurban car, carelessly and negligently failed to provide or display any signal light thereon, and carelessly and negligently backed the same out of said shops on said main track in such fog and into collision with plaintiff's car in charge of one person only, who was operaing the motor at the far end of the car, and carelessly and negligently failed to employ a conductor on said car or any assistant or flagman at the intersection of said main track and switch, and carelessly and negligently failed to employ a sufficient force of men on said interurban car and in and about the said shop and switches to safely move the said car out of said shop and onto said main track, and without such conductor, assistant, or flagman such person could not give warning to plaintiff of the approach of said interurban car and could not know of the approach of plaintiff's car in time to avoid collision, and by reason of all and singular the said negligent acts and omissions of defendant and not otherwise the said collision occurred, and without such negligence plaintiff would not have been injured.”

It also alleged, in substance, in said second paragraph of complaint that “said interurban car had been received from the Terre Haute, Indianapolis & Eastern Traction Company for repair by appellant at its said shops, and that appellant was in the act of returning said car to said traction company, that said interurban car was not intended or fitted for use upon appellant's street railway, but was much larger, heavier, and higher than the cars used by appellant and operated by appellee, and was so constructed that, when it came into collision with the car operated by plaintiff, the bumper or cross-beam of said interurban car passed over the bumper or cross-beam of the car which appellee was operating, and crushed the light frame-work inclosing the vestibule in which appellee was standing, and caught and injured him.”

For the purpose of determining the questions presented by the demurrer to each paragraph of the complaint, it must be assumed from the allegations therein that the repair and storage of its own cars and of the cars of other street and interurban railway companies was a part of the work and business of appellant which it was authorized to do. It is insisted by appellant that each paragraph of the complaint “fails to allege facts showing the existence of any duty owed by it to appellee, the omission to perform which operated to bring about the accident and consequent injury complained of,” and that each of said paragraphs is insufficient for that reason.

[1] In an action by an employé to enforce a common-law liability against the employer, facts must be alleged in the complaint showing the existence of a duty on the part of the employer to the employé the omission to perform which caused the injury complained of. Pittsburgh, etc., R. Co. v. Lightheiser, 163 Ind. 247, 251-253, 71 N. E. 218, 660, and cases cited; Robertson v. Ford, 164 Ind. 538, 546, 74 N. E. 1;Pittsburgh, etc., Co. v. Peck, 165 Ind. 537, 540, 542, 76 N. E. 163, and cases cited; Chicago, etc., Co. v. Barker, 169 Ind. 670, 675, 676, 83 N. E. 369, 17 L. R. A. (N. S.) 542, and authorities cited; Chicago, etc., Co. v. Lain, 170 Ind. 84, 88-91, 83 N. E. 632, and cases cited; Cleveland, etc., Co. v. Morrey, 172 Ind. 513, 519-522, 88 N. E. 932, and cases cited. If said second paragraph alleged facts from which the law would imply the duty of appellant to do or not to do what it is alleged it negligently did or negligently failed to do, then a violation or breach thereof may be shown by an allegation that it negligently did or failed to do what was necessary to discharge such duty. But the characterization of an act or omission as negligent is not sufficient to show both a duty and a violation thereof. Chicago, etc., R. Co. v. Lain, supra, 170 Ind. 88-91, 83 N. E. 622, and cases cited; Cleveland, etc., R. Co. v. Morrey, supra, 172 Ind. 521, 522, 88 N. E. 932, and cases cited; Pittsburgh, etc., R. Co. v. Peck, 165 Ind. 537, 540, 541, 76 N. E. 163, and cases cited.

[2] It is alleged in each paragraph of the complaint “that plaintiff was moving said car over and along said tracks of defendant at or near said shops in a careful and cautious manner when said defendant negligently and carelessly threw a car of the Terre Haute, Indianapolis & Eastern Traction Company out upon the main track over which this plaintiff was operating said car, and carelessly and negligently caused said interurban car to collide with the car being operated by this plaintiff.” We judicially know that an incorporated street railroad company, like appellant, can only operate its cars by and through its employés and the averment in each paragraph of the complaint that the “defendant negligently and carelessly threw an interurban car,” etc., “out upon the main track,” etc., “and carelessly and negligently caused said car to collide with the car being operated by this plaintiff,” gives rise to the presumption that the alleged negligent act was that of a fellow servant in the absence of averments showing the contrary. Southern, etc., R. Co. v. Elliott, 170 Ind. 273, 284, 82 N. E. 1051, and cases cited; Indianapolis, etc., R. Co. v. Johnson, 102 Ind. 352, 354-357, 26 N. E. 200, and cases cited. Said allegations in regard to the manner in which the interurban car was run out out on the main track and its collision with appellee's car show nothing more than the acts of fellow servants of appellee for which under the rules of the common-law appellant is not liable. Southern, etc., R. Co. v. Elliott, supra, 170 Ind. 284, 82 N. E. 1051;Indianapolis, etc., R. Co. v. Johnson, supra, 102 Ind. 354-357, 26 N. E. 200...