Kentucky & Indiana Bridge & Railroad Company v. Moran

• Decision Date: 30 October 1906
• Docket Number: 5,784
• Citation: 79 N.E. 213,39 Ind.App. 24
• Court: Indiana Appellate Court
• Parties: KENTUCKY & INDIANA BRIDGE & RAILROAD COMPANY v. MORAN

79 N.E. 213

39 Ind.App. 24

KENTUCKY & INDIANA BRIDGE & RAILROAD COMPANY v. MORAN

No. 5,784

Court of Appeals of Indiana

October 30, 1906

From Floyd Circuit Court; William C. Utz, Judge.

Action by James Moran against the Kentucky & Indiana Bridge & Railroad Company. From a judgment for plaintiff defendant appeals. (For decision on transfer, see 16- Ind. --.).

Transferred to Supreme Court.

George H. Hester and E. P. Humphrey, for appellant.

Stotsenburg & Weathers, for appellee.

OPINION

COMSTOCK, P. J.

James Moran, as plaintiff, brought this action against the appellant, the Kentucky & Indiana Bridge & Railroad Company, to recover damages for a personal injury alleged to have been sustained while in the employ of the appellant as a motorman on one of its electric cars. The injury is charged to have happened in a collision at the intersection of appellant's tracks with those of the Pennsylvania Company, in the city of New Albany.

As the foundation of the action the appellee alleged that the appellant was negligent in failing to supply the car with the proper brake-rod. Under the first paragraph it was alleged that it was necessary for the safe operation of said car, 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 force of said brakes when applied; that on said day said 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; that the dangerous and defective condition of said brake was unknown to the plaintiff, but was well known to the defendant, or by reasonable diligence could have been known to said defendant.

The second paragraph is in the identical language of the first 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 carried therein 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."

A separate demurrer to each of these paragraphs was overruled, the cause put at issue by general denial, and a trial had, resulting in a verdict and judgment in favor of appellee for $ 1,200.

The first specification of error challenges the sufficiency of the complaint, for want of facts, to constitute a cause of action against appellant. The complaint seeks to recover on account of the failure of a common-law duty, which the appellant, as master, owed the appellee as its servant.

It is argued by the appellant that the complaint should allege that the master had knowledge of the defect a sufficient length of time before the injury, by the exercise of reasonable care, to have made the necessary repairs, or at least to notify the servant of the danger; citing, Malott v. Sample (1905), 164 Ind. 645, 74 N.E. 245; Seaboard Mfg. Co. v. Woodson (1891), 94 Ala. 143, 10 So. 87; United States, etc., Co. v. Weir (1891), 96 Ala. 396, 11 So. 436; Indianapolis, etc., R. Co. v. Flanigan (1875), 77 Ill. 365; Missouri Pac. R. Co. v. Sasse (1893), (Tex. Civ. App.), 22 S.W. 187; 20 Am. and Eng. Ency. Law (2d ed.), 94; Lake Shore, etc., R. Co. v. Stupak (1890), 123 Ind. 210, 23 N.E. 246; 4 Thompson, Negligence (2d ed.), § 3782.

Appellant relies strongly upon Malott v. Sample, supra. The opinion in that case seems to support the claim for which appellant contends.

Appellee insists that the complaint is not defective as claimed by appellant, and that in an action of this character it is sufficient to allege actual knowledge on the part of the master; citing Malott v. Sample supra; Consumers Paper Co. v. Eyer (1903), 160 Ind. 424, 66 N.E. 994; Johnson v. Gebhauer (1902), 159 Ind. 271, 64 N.E. 855; Consolidated Stone Co. v. Summit (1899), 152 Ind. 297, 53 N.E. 235; Louisville, etc., R. Co. v. Miller (1895), 140 Ind. 685, 40 N.E. 116; Heltonville Mfg. Co. v. Fields (1894), 138 Ind. 58, 36 N.E. 529; Evansville, etc., R. Co. v. Duel (1893), 134 Ind. 156, 33 N.E. 355; Chicago, etc., R. Co. v. Tackett (1904), 33 Ind.App. 379, 71 N.E....