Indianapolis Union Railway Company v. Houlihan
| Decision Date | 06 June 1901 |
| Docket Number | 18,995 |
| Citation | 60 N.E. 943,157 Ind. 494 |
| Parties | Indianapolis Union Railway Company v. Houlihan |
| Court | Indiana Supreme Court |
Petition for Rehearing Withdrawn December 6, 1901.
From Boone Circuit Court; B. S. Higgins, Judge.
Action by John J. Houlihan against the Indianapolis Union Railway Company for personal injuries. From a judgment for plaintiff defendant appeals.
Reversed.
A Baker, E. Daniels, S. M. Ralston and C. M. Zion, for appellant.
A. J. Terhune, A. J. Shelby, W. J. Beckett and A. C. Harris, for appellee.
Judgment for appellee for $ 15,000 on account of personal injuries. Appellant assigns that the court erred in overruling (1) its demurrer to the amended complain; (2) its motion for judgment on the jury's answers to interrogatories notwithstanding the general verdict, and (3) its motion for a new trial.
(1) The amended complaint alleges that appellant operates a railway in and about Indianapolis, known as the Belt line; that outside of the city, near the stock-yards, the Belt line crosses the Vandalia railroad at right angles; that the Belt line runs north and south, and the stock-yards are south of the crossing; that each line has two tracks at the crossing, which are parallel and about six feet apart; that on August 8, 1895, appellee was employed by appellant as a telegraph operator at the crossing and it was his duty to keep an account and take a report of all the cars of other railways that passed in and out at the crossing over appellant's line, and report the same to appellant, and set the targets at the crossing, and appellee had no other duties; that trains coming south into the stock-yards ran on the west track of appellant's line and trains passing north out of the stock-yards ran on the east track; that it was appellee's duty to go from the telegraph office, which was located in the northwest angle of the crossing and about three feet from the west track, over the west track to receive reports from the outgoing trains on the east track; that some one in charge of the outgoing train would hand to appellee a report of such train while it was in motion passing north over the crossing; that there was no other way by which appellee could receive such reports and this fact was well known to appellant and its engineer in charge of the locomotive engine hereinafter mentioned; that on August 8, 1895, appellee was in the discharge of his duties at the crossing; that without any negligence on his part he stepped out of the telegraph office and was in the act of stepping onto and across the west track in order to receive a report from an outbound train which was then passing north on the east track, as was his duty to do; that appellee did not know of the approach of any engine on the west track; that he could not see the engine as it approached the crossing by reason of posts and high weeds between the telegraph office and the west track, which appellant had negligently permitted to be and grow upon its right of way, completely obstructing appellee's view to the north; that he could not hear the engine approaching the crossing by reason of the noise of the outbound train; that appellee was in the act of stepping on the west edge of the west track, without any negligence on his part, when an engine, owned by appellant and in charge of appellant's engineer, was negligently run by the engineer against appellee, without fault on his part, inflicting permanent injuries; that the engineer negligently failed to stop the engine while approaching the crossing from the north, and negligently failed to give any signal of the engine's approach, although he knew that there was an outbound train running north on the east track over the crossing and that appellee would be compelled to cross the west track in discharge of his duty to get the report, but negligently ran the engine at the high and dangerous speed of twenty miles an hour towards and over the crossing, negligently striking appellee as aforesaid and inflicting the injuries as aforesaid, all without fault or negligence of appellee, but by reason of all of appellant's negligence as herein alleged, from which injuries, etc. Wherefore, etc.
Appellee insists that the ruling on the demurrer to this amended complaint can not be considered because the transcript contains a copy of the original complaint, which is found to be word for word the same as the amended complaint. The argument from this state of the record is that the clerk has erroneously copied the original complaint into the transcript where the amended complaint should have been inserted. But the clerk certifies that the paper copied into the record as the amended complaint is the amended complaint. The presumption is that the clerk has properly performed his official duty. It was his duty to embody the amended complaint in the transcript and to omit the original complaint. § 662 Burns 1901, § 650 R. S. 1881 and Horner 1897. Matter that should have been omitted will not be held to discredit the clerk's certificate of the correctness of matter which it was his duty to include. The case of Ellis v. City of Indianapolis, 148 Ind. 70, 47 N.E. 218, is not in point.
Appellant contends that the amended complaint is bad at common law because the facts show that appellee assumed the risks arising from the obstructions to his view and from the negligence of the engineer who was a fellow servant. Since appellee does not attempt to controvert this contention, it will be passed without consideration, and the sufficiency of the complaint will be determined alone from the employers' liability act. Acts 1893 p. 294; §§ 7083-7087 Burns 1901, §§ 5206s-5206v Horner 1897.
The first section of the act provides:
The amended complaint does not aver that appellee was "obeying or conforming to the order of some superior at the time of such injury having authority to direct", and appellant claims that this omission leaves the pleading fatally deficient. The fourth subdivision of the first section of the act is divisible into two parts: A railroad company is liable for damages for personal injury suffered by an employe while in its service (that is, while acting within the scope of his employment), the employe being free from contributory negligence, (1) "where such injury was caused by the negligence of any person in the service of such corporation [that is, acting within the scope of his employment] who has charge of any * * * locomotive engine or train upon a railway," or (2) "where such injury was caused by the negligence of any person, co-employe or fellow servant * * *, the said person, co-employe or fellow servant at the time acting in the place and performing the duty of the corporation in that behalf, and the person so injured obeying or conforming to the order of some superior at the time of such injury having authority to direct". From the words used and the structure and scope of the act we are of opinion that the concluding clauses of the fourth subdivision limit and qualify only the liability expressed in the second part of the fourth subdivision, and that railroad companies are answerable for the negligence of their servants in charge of signals, telegraph offices, switch yards, shops, round-houses, locomotive engines and trains upon their railways, to their employes the same as to strangers. This was the effect given to the fourth subdivision in the case of Baltimore, etc., R. Co. v. Little, 149 Ind. 167, 48 N.E. 862, and in Baltimore, etc., R. Co. v. Peterson, 156 Ind. 364, 59 N.E. 1044. In Pittsburg, etc., R. Co. v. Montgomery, 152 Ind. 1, 71 Am. St. 301, 49 N.E. 582, the complaint alleged that the plaintiff was a freight brakeman in the defendant's service and that he was injured through the negligence of the defendant's engineer. The sufficiency of the complaint to exempt the plaintiff from the operation of the common law rule as to fellow servants and to state a cause of action under the fourth subdivision of the employers liability act, was challenged on the ground that there was no allegation that the engineer was performing the duty of the corporation in that behalf and that the plaintiff was obeying or conforming to the order of some superior having authority to direct. The opinion was written by a member of the court who did not agree with the majority in their construction of the fourth subdivision, and there may be difficulty at some points in distinguishing between what he said for himself and what for the court; but we are of opinion that the decision of the court on this point was wholly expressed in the words "the holding of the court is that, in order to make the complaint good under the first part of the subdivision quoted [the fourth subdivision], as to the point in question, it is only required that it state that the engineer, while in the...
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