Lake Erie And Western Railroad Company v. Hennessey
| Decision Date | 30 January 1912 |
| Docket Number | 21,887 |
| Parties | Lake Erie and Western Railroad Company v. Hennessey |
| Court | Indiana Supreme Court |
From Delaware Circuit Court; Joseph G. Leffler, Judge.
Action by Alexander Hennessey against the Lake Erie and Western Railroad Company. From a judgment for plaintiff, defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)
Reversed.
John B Cockrum, Silverburg & Bracken and Shirts & Fertig for appellant.
J. M Fitch, and Thompson, Thompson & Sprague, for appellee.
This is the second appeal in this case. Lake Erie, etc., R. Co. v. Hennessey (1906), 38 Ind.App. 574, 78 N.E. 670. Upon the return of the cause to the court below, the complaint was amended to show that appellant knew that appellee was a car inspector for the Chicago, Indiana and Eastern Railroad Company, and that immediately before the injury appellee inquired of appellant's conductor whether he intended setting any more cars on the transfer track that day, and that the conductor knew that the purpose of the inquiry was to learn whether it would be safe for appellee to begin inspecting said cars; that when he was answered in the negative, he at once began the work of inspection; that appellant knew he was under the car when the injury occurred, and knew when said car was received, and when it was set on the transfer track, that the brake was out of repair, and that the car could not be controlled.
It is insisted by appellant that the complaint is still insufficient for failure to aver any facts showing the right or duty of appellee to be on the track or under the car at the time he was injured. The allegation in that respect is, "that as such car inspector of said company, it was his duty to examine and inspect all cars set on said transfer track by said defendant company, to be received and shipped by said Chicago, Indiana and Eastern Railroad Company, and that it was the duty of plaintiff to make said inspection and to examine all cars so set by said defendant, during each and every day, on said transfer track, before 6 o'clock p. m. of the day said car or cars were so set on said transfer track, and that in the proper discharge of his (plaintiff's) duties, as such car inspector for such company, he was required to, and did go, and for a time to remain, under the cars so by him inspected and examined, for the purpose of properly inspecting and examining them." This is almost the identical language of the complaint before the Appellate Court on the former appeal, though it does not appear that the question was then raised. The facts showing a requirement to inspect said cars, and, in the inspection of cars, to go under them, are sufficiently averred to show that appellee was in the discharge of the duties of his alleged employment, and the allegation of the specific negligence which caused the injury is a sufficient allegation of the proximate cause. Greenawaldt v. Lake Shore, etc., R. Co. (1905), 165 Ind. 219, 74 N.E. 1081; Baltimore, etc., R. Co. v. Peterson (1901), 156 Ind. 364, 59 N.E. 1044; Indianapolis Tel. Co. v. Sproul (1912), 49 Ind.App. 613, 93 N.E. 463; Chicago, etc., R. Co. v. Stephenson (1904), 33 Ind.App. 95, 69 N.E. 270. Appellant sought a judgment on the interrogatories and the answers, on the theory that as between appellant and appellee, appellant owed no duty to provide brakes, or to see that they were in repair on the car so recently received and run on the transfer track, in the absence of notice of the defect.
This claim is made on the ground that the failure of the brake to work, or hold, was the proximate cause of the injury, under a finding of the jury that the car had been only about twenty minutes in the possession of appellant, and that the latter did not know of appellee's presence under the car, or of the defective brake, though the defect was one that could readily be seen without minute examination.
It may be true that this car, being one received from another line of railway within so short a time as twenty minutes, not for the purpose of forwarding, but one consigned to Muncie, which appellant was merely switching, there was not that duty of, or opportunity for inspecting which might otherwise be required. Louisville, etc., R. Co. v. Bates (1897), 146 Ind. 564, 45 N.E. 108.
It is also true, that since appellee was in a place where his duty required him to be, and was engaged in work which would, necessarily, more or less absorb his attention, it may have been negligence in those having the management of the car, who were, or should have been, aware of his presence, to permit the car to be run upon him while he was so employed, without giving him warning. Lake Erie, etc., R. Co. v. Charman (1903), 161 Ind. 95, 67 N.E. 923; Indiana, etc., R. Co. v. Barnhart (1888), 115 Ind. 399, 400, 16 N.E. 121; Chicago, etc., R. Co. v. Long (1887), 112 Ind. 166, 171, 13 N.E. 659; Goodfellow v. Boston, etc., R. Co. (1871), 106 Mass. 461; Crowley v. Burlington, etc., R. Co. (1885), 65 Iowa 658, 20 N.W. 467, 22 N.W. 918.
The complaint alleges that appellant "had knowledge and well knew" that appellee was under the cars inspecting them; and that at the time it "threw, pushed and drove the car on and upon the transfer track, it had notice and knowledge of the defective and insufficient brake, * * * and knew that said brake was out of repair, and that the motion of the car could not be controlled." These allegations include constructive or imputed notice or knowledge, as well as actual notice or knowledge. Grand Trunk, etc., R. Co. v. Melrose (1906), 166 Ind. 658, 671, 78 N.E. 190; Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 69 N.E. 669, 102 Am. St. 185; Consolidated Stone Co. v. Summit (1899), 152 Ind. 297, 53 N.E. 235; Pennsylvania Co. v. Ebaugh (1899), 152 Ind. 531, 534, 53 N.E. 763, and cases cited; Peerless Stone Co. v. Wray (1896), 143 Ind. 574, 577, 42 N.E. 927; Evansville, etc., R. Co. v. Duel (1893), 134 Ind. 156, 165, 33 N.E. 355; Chicago, etc., R. Co. v. Fry (1892), 131 Ind. 319, 325, 28 N.E. 989; Ohio, etc., R. Co. v. Pearcy (1891), 128 Ind. 197, 205, 27 N.E. 479; Indiana Nat. Gas, etc., Co. v. Vauble (1903), 31 Ind.App. 370, 68 N.E. 195; Kentucky, etc., R. Co. v. Sydnor (1904), 119 Ky. 18, 82 S.W. 989, 68 L. R. A. 183, 185; St. Louis, etc., R. Co. v. Triplett (1891), 54 Ark. 289, 15 S.W. 831, 16 S.W. 266, 11 L. R. A. 773; El Paso, etc., R. Co. v. Darr (1906), 93 S.W. 166, 168; Louisville, etc., R. Co. v. Lowe (1904), 118 Ky. 260, 80 S.W. 768, 65 L. R. A. 122.
The jury finds that neither the conductor nor the crew knew that appellee was under the car, and that the condition of the brake was not known before the car was set in motion, though it was one which could be seen by the naked eye without minute examination. In the opinion of the writer, if these findings embrace both actual and constructive notice, there should be a judgment for appellant on these answers, though it may be true that the doctrine is not to be invoked in every case, unless an established presumption of knowledge exists, or it would be unconscionable to permit one to assert want of knowledge. Cleveland, etc., R. Co. v. Moore (1907), 170 Ind. 328, 82 N.E. 52, 84 N.E. 540.
Other interrogatories and answers show that appellee made the inquiry for the purpose of going to the work of inspection, and that in reliance on the answer he received he went at once to that work.
It cannot be said as a matter of law, that, under all circumstances, it is negligent to kick a car on to a track, though it might be negligent under some conditions, and whether the proper precautions are taken in a particular case, or whether it was negligence in this particular case to kick the car onto the transfer track, without knowing whether the brakes would hold the car, are questions for the jury. Ferguson v. Wisconsin Cent. R. Co. (1884), 63 Wis. 145, 23 N.W. 123; Illinois Cent. R. Co. v. Larson (1894), 152 Ill. 326, 38 N.E. 784; York v. Maine Cent. R. Co. (1891), 84 Me. 117, 24 A. 790, 18 L. R. A. 60; Woodard v. New York, etc., R. Co. (1887), 106 N.Y. 369, 13 N.E. 424.
We do not understand that the failure of the brake to work was the proximate cause of the injury, or that it is so claimed by appellee, though it may have been a concurring cause. A proximate cause is not necessarily the nearest, or the first or the last cause, unless there be a responsible, intermediate, independent agency which suspends the operation of the first, or moving, or primary cause. The proximate cause is the efficient cause, or the cause which sets another cause in motion, or without which the injury could not have occurred. Chicago, etc., R. Co. v. Dinius (1908), 170 Ind. 222, 84 N.E. 9; Haskell & Barker Car Co. v. Przezdziankowski (1908) 170 Ind. 1, 83 N.E. 626, 14 L. R. A. (N. S.) 972, 127 Am. St. 352; New York, etc., R. Co. v. Hamlin (1908), 170 Ind. 20, 83 N.E. 343; Flint & Walling Mfg. Co. v. Beckett (1906), 167 Ind. 491, 79 N.E. 503, 12 L. R. A. (N. S.) 924; Indianapolis St. R. Co. v. Schmidt (1904), 163 Ind. 360, 364, 71 N.E. 201; New York, etc., R. Co. v. Perriguey (1894), 138 Ind. 414, 430, 34 N.E. 233, 37 N.E. 976; Pittsburgh, etc., R. Co. v. Cozatt (1907), 39 Ind.App. 682, 79 N.E. 534; Evansville Hoop, etc., Co. v. Bailey (1909), 43 Ind.App. 153, 84 N.E. 549; Cincinnati, etc., R. Co. v. Acrea (1907), 40 Ind.App. 150, 81 N.E. 213; Ring v. City of Cohoes (1879), 77 N.Y. 83, 90, 33 Am. Rep. 574. Neither will the fact that it may have been a concurring cause defeat a recovery. Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 73 N.E. 899; Town of Fowler v. Linquist (1894), 138 Ind. 566, 573, 37 N.E. 133; Cole Bros. v. Wood (1894), 11 Ind.App. 37, 61, 36 N.E. 1074; ...
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