Kentucky & Indiana Bridge & Railroad Company v. Moran
| Decision Date | 13 March 1907 |
| Docket Number | 20,946 |
| Citation | 80 N.E. 536,169 Ind. 18 |
| Court | Indiana Supreme Court |
| Parties | Kentucky & Indiana Bridge & Railroad Company v. Moran |
Rehearing Denied June 27, 1907.
From Floyd Circuit Court; William C. Utz, Judge.
Action by James Moran against the Kentucky & Indiana Bridge & Railroad Company. From a judgment on a verdict for plaintiff for $ 1,200, defendant appeals. Transferred from Appellate Court (see 39 Ind.App. 24) under § 1337j Burns 1901, subd. 1, Acts 1901, p. 565, § 10.
Reversed.
E. P Humphrey and George H. Hester, for appellant.
E. B Stotsenburg and John H. Weathers, for appellee.
The complaint consists of two paragraphs, in each of which appellee seeks to recover damages for personal injuries sustained while in the employ of appellant as a motorman in the operation of its electric railroad. A demurrer to each paragraph of the complaint for insufficiency of facts was overruled, to which an exception was reserved. Answer, general denial. Trial by jury, and a general verdict returned in favor of appellee, awarding him damages. Along with this verdict the jury returned answers to a series of interrogatories. The motion by appellant for a new trial, based upon various grounds, was denied, to which ruling it excepted. Judgment on the verdict.
The errors assigned herein relate to the decision of the court (1) in overruling the demurrer to the complaint and to each paragraph thereof; (2) in denying the motion for a new trial. The first paragraph of the complaint may be summarized as follows: On March 11, 1904, the defendant was a bridge and railroad corporation organized under the laws of Kentucky. It owned and operated a line of electric railroad between the cities of New Albany, Floyd county, Indiana, and Louisville, Kentucky, and on said day was engaged in the business of a common carrier of passengers for hire. This line was equipped with motor-cars propelled by electricity, and these cars were used by the defendant for the carriage and transportation of passengers. Among the cars so owned and operated by the defendant in its aforesaid business was motor-car No. 9. On March 11, 1904, plaintiff was in the employ of defendant, serving as a motorman, and by its direction he was on said day placed in charge of said motor-car No. 9, to work and operate thereon as a motorman. This car was equipped with air-brakes which were operated by the motorman in charge thereof by means of a lever in the front vestibule. Said brakes consisted of brake-shoes attached to the brake-beam, and the latter was connected with the air apparatus on the car by an iron rod about twelve feet long and three-quarters of an inch in diameter, commonly called a brake-rod. It was necessary, for the safe operation of said car and the safety of the passengers carried therein and of the employes of the defendant in charge thereof, that said brake-rod should be sound and in good condition, and capable of standing the pressure and the force of said brakes when applied. On said day the brake-rod on said car was in a dangerous and defective condition in this: that said rod contained a break or flaw therein, which rendered the same weak and insufficient for the purpose for which it was intended, and liable to break. The dangerous and defective condition of said brake-rod was unknown to the plaintiff, but was well known to the defendant, or by reasonable diligence in the premises could have been known to said defendant. On said day, while the plaintiff was operating this car from the city of Louisville to the city of New Albany, and while the car was approaching the tracks of the Pennsylvania railroad, which crossed the tracks of defendant at right angles at Vincennes and Main streets in said city of New Albany, and while said car was running down grade, it became necessary for the plaintiff to apply the brakes on said car in order to stop it before reaching the crossing of the track of the Pennsylvania railroad. In order to do this the plaintiff applied the brakes, turning the lever thereof, whereupon said brake-rod, by reason of its defective condition, broke, and by reason thereof plaintiff was unable to stop said car, which, without any fault or negligence on his part, ran into and against a train standing on the tracks of the Pennsylvania railroad. In said collision, and by reason thereof, plaintiff was caught in said car and injured in his right hip, leg, back, spine, etc., and permanently crippled, etc. Wherefore he demands judgment for $ 2,000.
The second paragraph of the complaint is the same as the first paragraph, except that the defect in the brake-rod is set out in the following language: "That it was necessary, for the safe operation of said car and the safety of the passengers thereon and of the employes of the defendant in charge thereof, that said brake-rod should be of sufficient size and thickness to stand the pressure and force of said brakes when applied; that said rod was defective in this: that it was too small and insufficient to stand the pressure of the brakes when applied, which was unknown to the plaintiff, but was well known to the defendant, or could have been known by it by the exercise of reasonable diligence in the premises." Counsel for appellant argue that each paragraph of the complaint is insufficient in the statement of material facts, and therefore the court erred in overruling the demurrer.
This court has repeatedly affirmed the well-settled rule relating to master and servant, that it is the legal duty of the former to exercise ordinary care to furnish machinery and appliances reasonably safe and suitable for his employes to perform their duties. It is the further duty of the master to exercise a reasonable supervision over such machinery and appliances, and to use ordinary care in keeping or maintaining the same in a reasonably safe condition for use. Ohio, etc., R. Co. v. Pearcy (1891), 128 Ind. 197, 27 N.E. 479; Evansville, etc., R. Co. v. Duel (1893), 134 Ind. 156, 33 N.E. 355; Indiana, etc., R. Co. v. Snyder (1895), 140 Ind. 647, 39 N.E. 912; Brazil Block Coal Co. v. Gibson (1903), 160 Ind. 319, 98 Am. St. 281, 66 N.E. 882.
In an action by an injured servant whose injury is due or attributable to defects in machinery or appliances which he was using in the performance of the work for which he had been employed, he, among other things, is required to show in his pleading that the master failed to exercise the care exacted by law in originally providing the machinery or appliances in question, or that he neglected to use the required care in keeping or maintaining such machinery or appliances in reasonably safe repair. 13 Ency. Pl. and Pr., 894.
Keeping in mind the well-settled principles to which we have referred, we pass to the consideration of the sufficiency of the complaint herein. The question is presented: Does this pleading set out such a case of negligence on the part of appellant in the discharge of the duties...
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Kentucky & Indiana Bridge & R. Co. v. Moran
... ... Appeal from Circuit Court, Floyd County; Wm. C. Utz, Judge.Action by James Moran against the Kentucky & Indiana Bridge & Railroad Company. From a judgment for plaintiff, defendant appealed to the Appellate Court (79 N. E. 213), by which the case was transferred to the Supreme ... ...