Justice v. The Pennsylvania Company

• Decision Date: 18 February 1892
• Docket Number: 15,533
• Citation: Justice v. The Pennsylvania Company, 30 N.E. 303, 130 Ind. 321 (Ind. 1892)
• Parties: Justice v. The Pennsylvania Company
• Court: Indiana Supreme Court

30 N.E. 303

130 Ind. 321

Justice v. The Pennsylvania Company

No. 15,533

Supreme Court of Indiana

February 18, 1892

From the Clark Circuit Court.

Judgment affirmed.

D. C Anthony and L. A. Douglass, for appellant.

S Stansifer, for appellee.

OPINION

Coffey, J.

The material facts alleged in the complaint in this case are, that on the 9th day of May, 1888, the appellant was in the employ of the appellee as a section hand, with a gang of four other men, engaged in the repair of appellant's railroad track, of which gang one McCleary was foreman; that it was the custom of appellee to delegate to such foremen as were in its employment the power to employ and discharge section hands, and that the appellant was employed by said McCleary, who had power to discharge him; that it was the duty of McCleary to direct appellant, and the gang with which he worked, how, when and where to work, and to direct and control the manner of using the various tools, implements and other means used to perform the work, and that he had the absolute control and supervision of the use and movements of a certain hand-car used by said gang in the prosecution of their work; that on said day, after the day's work was completed, appellant and said gang, with McCleary, got upon said hand-car for the purpose of returning the same, with the tools, to the place where they were usually kept, when another gang, consisting of seven section men, placed their hand-car upon the track, and started after the appellant and the gang with which he was associated; that each of said hand-cars was propelled by power applied to wheels by means of cog-wheels connected with rods fastened to two levers, which said levers rested on an upright projecting above the floor of the car about two or three feet; that the gang, composed of seven men, were on a hand-car longer and heavier than the car used by the appellant and his gang, and that the levers and apparatus used to propel the same were longer in proportion, and capable of propelling the car at a rate of speed double that of the one on which appellant was travelling; that said men ran their car up to and against the car upon which appellant was, and began to and did run the same at great speed, which caused the levers on appellant's car to work up and down with such rapidity that it became and was difficult for appellant to maintain his hold on them, and that by reason of the small space on the platform of the car, it was dangerous to let go the lever, the hold on the same being the only means by which appellant could maintain his position on the car; that said McCleary knew that the rapid motion of said levers was dangerous to those upon the car, and that it was difficult for appellant to retain his hold thereon, and so knowing, carelessly and negligently failed to apply the brake and check the speed of the car, though said brake was convenient to him, and not convenient to the appellant; that by reason of the rapid speed of the car, and the motion of the levers thereon, the hold of the appellant became loosened, without any fault or negligence on his part, and said lever struck the appellant, whereby he was greatly injured; that said McCleary carelessly and negligently permitted said other car to butt up against the car upon which appellant was travelling without any objection thereto, and permitted the gang thereon to propel and push ahead appellant's car at a very rapid rate of speed, and carelessly and negligently permitted the same to continue without raising any objection thereto, or applying the brake until said accident occurred.

To this complaint the circuit court sustained a demurrer, and the propriety of this ruling is the only question for our consideration.

The complaint is drawn upon the theory that the facts therein stated constitute the section foreman, McCleary, a vice-principal, and the appellant seeks, in this court, to convince us that the complaint, upon that theory, states a cause of action.On the other hand it is contended by the appellee that, under the facts alleged in the complaint, it appears that the section foreman was a fellow-servant with the appellant, for whose negligence the appellee is not liable.The matter, then, for decision by this court is as to whether the section foreman, under the facts alleged in the complaint, was a vice-principal or a fellow-servant.

The rule in this State that the master is not liable to his servant for an injury occasioned by the negligence of a fellow-servant, is too well established and is too familiar to call for the citation of authority.

It is also settled that the question of rank, in most cases, throws no light upon the inquiry as to whether two persons were, or were not, at a given time, fellow-servants, for it is not a question of rank.Drinkout v. EagleMachine Works, 90 Ind. 423;Indiana Car Co. v. Parker,100 Ind. 181;Taylor v. Evansville, etc., R. R. Co.,121 Ind. 124, 22 N.E. 876.

Notwithstanding the fact that the general rule which holds the master is not liable to his servant for the negligence of a fellow-servant is well understood, it is often difficult to determine, from a given state of facts, who are, and who are not fellow-servants.Ever since the decision in the case of Priestley v. Fowler, the first decision upon the subject, decided in England in the year 1837, and reported in 3 Mees. & W. 1, judges and text-writers have attempted to lay down some rule or formula by which to determine what...