Krueger v. Louisville, New Albany And Chicago Railway Company

• Decision Date: 17 May 1887
• Docket Number: 12,432
• Citation: 11 N.E. 957,111 Ind. 51
• Parties: Krueger, Administrator, v. The Louisville, New Albany and Chicago Railway Company
• Court: Indiana Supreme Court

11 N.E. 957

111 Ind. 51

Krueger, Administrator, v. The Louisville, New Albany and Chicago Railway Company

No. 12,432

Supreme Court of Indiana

May 17, 1887

From the Laporte Circuit Court.

Judgment reversed.

D. J Wile and F. E. Osborn, for appellant.

OPINION

Elliott, C. J.

The appellant's intestate was in the service of the appellee as a fireman on one of its locomotives, and was killed while discharging the duties imposed upon him by his employment.

There was evidence showing that by order of the division master mechanic of the appellee, James McAuliffe, a tender belonging to engine number 9 was attached to engine number 5; that the deck of the tender was three to four inches higher than the deck of the engine to which it was attached; that this difference in height made the use of the engine and tender dangerous, and that the engineer in charge of the locomotive notified the master mechanic of that fact.

The engineer testified that the difference in height caused an inch of lost motion, and Elijah T. Behan, master mechanic of the Michigan Central Railroad, who had for twenty-two years been acquainted with the construction, use and repairs of locomotives and attachments, testified that "the greatest amount of lost motion permissible is half an inch." Other witnesses testified that the lost motion caused by the attachment of the tender of engine number 9 to engine number 5 caused a much greater degree of lost motion and rendered the use of the engine and tender dangerous because of the liability of the tender to become detached from the engine.

The appellant's intestate was killed by the parting of the engine and tender, while engaged in shovelling coal into the fire-box of engine number 5. "The engine," as the engineer says, "in an instant, without any warning, broke away from the tender and the rest of the train, and ran about two hundred feet," and the tender and some of the cars ran over the decedent.

It is the duty of the master to use ordinary care and diligence to provide safe working places and safe machinery and appliances for those in his service. A neglect of this duty is an actionable wrong. Bradbury v. Goodwin, 108 Ind. 286, 9 N.E. 302; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88, 3 N.E. 627; Indiana Car Co. v. Parker, 100 Ind. 181, and authorities cited p. 187.

This duty rests on the master, and he can not absolve himself from liability by delegating it to an agent. "Where the duty is one owing by the master, and he entrusts its performance to an agent, the agent's negligence is that of the master." Indiana Car Co. v. Parker supra. The negligence of a fellow-servant or co-employee, acting as such, will not authorize a recovery in any case, although the fellow-servant or co-employee may be a superior officer, an agent or a foreman; but, if the superior agent is charged with the performance of the master's duty, then, in so far as that duty is concerned, his acts and his negligence are the acts and the negligence of the master, and not simply those of a co-employee or fellow-servant. Capper v. Louisville, etc., R. W. Co., 103 Ind. 305, 2 N.E. 749; Atlas Engine Works v. Randall, 100 Ind. 293 (50 Am. R. 798); Indiana Car Co. v. Parker, supra; Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261 (273) (38 Am. R. 134); Mitchell v. Robinson, 80 Ind. 281 (41 Am. R. 812); Hough v. Railway Co., 100 U.S. 213, 25 L.Ed. 612; Mullan v. Philadelphia, etc., Co., 78 Pa. 25 (21 Am. R. 2); Gunter v. Graniteville, etc., R. R. Co., 18 S.C. 262 (44 Am. R. 573); Crispin v. Babbitt, 81 N.Y. 516 (37 Am. R. 521); Flike v. Boston, etc., R. R. Co., 53 N.Y. 549 (563) (13 Am. R. 545); Corcoran v. Holbrook, 59 N.Y. 517 (17 Am. R. 369); McCosker v. Long Island R. R. Co., 84 N.Y. 77; ...