Lake Erie & W. Ry. Co. v. Hennessey

Decision Date30 January 1912
Docket NumberNo. 21,887.,21,887.
Citation97 N.E. 331,177 Ind. 64
PartiesLAKE ERIE & W. RY. CO. v. HENNESSEY.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Delaware County; Jos. L. Leffler, Judge.

Action by Alexander Hennessey against the Lake Erie & Western Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from the appellate court under Burns' Ann. St. 1908, § 1405. Reversed and remanded.John B. Cockrum, and Shirts & Fertig, for appellant. J. Monroe Fitch, W. A. Thompson, W. H. Thompson, and R. W. Sprague, for appellee.

MYERS, J.

[1] This is the second appeal in this case. Lake Erie, etc., Co. v. Hennessey, 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 appellee was a car inspector for the Chicago, Indiana & Eastern Railroad, 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 he could begin inspecting with safety, and was answered in the negative, and at once began the work of inspection, and that appellant knew he was under the car when the injury occurred, and knew when it received, and when it set, the car on the transfer track, that the brake was out of repair, and 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 upon 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 (Chicago, Indiana & Eastern Railroad Company) it was his duty to examine and inspect all cars set upon said transfer track by said defendant company, to be received and shipped by the said Chicago, Indiana & Eastern Railroad Company, and that it was the duty of plaintiff to make said inspection and examination of all cars so set by said defendant, during each and every day upon said transfer track, before 6 o'clock p. m. of the day said car or cars were so set upon 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 remain under the cars so by him inspected and examined, for the purpose of properly inspecting and examining the same.” 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, 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., Co., 165 Ind. 219, 74 N. E. 1081;Baltimore, etc., Co. v. Peterson, 156 Ind. 364, 59 N. E. 1044;Indianapolis, etc., Co. v. Sproul (App.) 93 N. E. 463;Chicago, etc., Co. v. Stephenson, 33 Ind. App. 95, 69 N. E. 270.

[2][3] Appellant sought a judgment upon the interrogatories and the answers upon the theory that as between the appellant and appellee, appellant owed no duty to provide brakes or to see that they were in repair upon the car so recently received and run upon the transfer track, in the absence of notice of the defect. This claim is made upon 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 only been about 20 minutes in the possession of the 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 be readily 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 20 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 inspection which might otherwise be required. L., N. A., etc., Co. v. Bates (1896) 146 Ind. 564, 45 N. E. 108.

It is also true that, being in a place where his duty required him to be, and 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 be aware of his presence, to permit the car to be run upon him while so employed, without giving him warning. Lake Erie, etc., Co. v. Charman (1903) 161 Ind. 95, 67 N. E. 923;Indiana, etc., Co. v. Barnhart, 115 Ind. 399, 400, 16 N. E. 121;Cincinnati, etc., Co. v. Long, 112 Ind. 166, 171, 13 N. E. 659;Goodfellow v. Boston, etc., Co., 106 Mass. 461;Crowley v. Burlington, etc., Co., 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 of the defective and insufficient brake *** and knew that the 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 Co. v. Melrose, 166 Ind. 658, 671, 78 N. E. 190;Indianapolis, etc., Co. v. Foreman, 162 Ind. 85, 69 N. E. 669, 102 Am. St. Rep. 185;Consolidated Co. v. Summit, 152 Ind. 297, 53 N. E. 235;Pennsylvania Co. v. Ebaugh, 152 Ind. 531, 534, 53 N. E. 763, and cases cited; Peerless, etc., Co. v. Wray, 143 Ind. 574, 577, 42 N. E. 927;Evansville, etc., Co. v. Duel, 134 Ind. 156, 165, 33 N. E. 355;Chicago, etc., Co. v. Fry, 131 Ind. 319, 325, 28 N. E. 989;Ohio, etc., Co. v. Pearcy, 128 Ind. 197, 205, 27 N. E. 479;Indiana, etc., Co. v. Vauble, 31 Ind. App. 370, 68 N. E. 195;Kentucky, etc., Co. v. Syndor, 119 Ky. 18, 82 S. W. 989, 68 L. R. A. 183, 185;St. Louis, etc., Co. v. Triplett, 54 Ark. 289, 15 S. W. 831, 16 S. W. 266, 11 L. R. A. 773;El Paso, etc., Co. v. Darr (Tex. Civ. App.) 93 S. W. 166, 168;Louisville, etc., Co. v. Lowe, 118 Ky. 260, 80 S. W. 768, 65 L. R. A. 122.

The jury find that neither the conductor nor the crew knew of his presence 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 with minute examination. In the opinion of the writer, if these findings embrace both actual and constructive notice, there should be a judgment for appellant upon 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., Co. v. Moore (1907) 170 Ind. 328, 82 N. E. 52, 84 N. E. 540.

[4] Other interrogatories and answers show that appellee made the inquiry for the purpose of going to the work of inspection, and that in reliance upon the answer he did go at once to work. It cannot be said as a matter of law, under all circumstances, that it is negligent to kick a car upon 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 in upon the transfer track without knowing whether the brakes would hold the car, are questions for the jury. Ferguson v. Wisconsin, etc., Co., 63 Wis. 145, 23 N. W. 123;Illinois, etc., Co. v. Larson, 152 Ill. 326, 38 N. E. 784;York v. Maine, etc., Co., 84 Me. 117, 24 Atl. 790, 18 L. R. A. 60;Woodward v. New York, etc., Co., 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 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 cause which sets another cause in motion, or without which the injury could not have occurred. Chicago, etc., Co. v. Dinius, 170 Ind. 222, 84 N. E. 9;Haskell Co. v. Przezdziankowski, 170 Ind. 1, 83 N. E. 626, 14 L. R. A. (N. S.) 972, 127 Am. St. Rep. 352;New York, etc., Co. v. Hamlin, 170 Ind. 20, 83 N. E. 343;Flint, etc., Co. v. Beckett, 167 Ind. 491, 79 N. E. 503, 12 L. R. A. (N. S.) 924;Indianapolis, etc., Co. v. Schmidt, 163 Ind. 360-364, 71 N. E. 201;New York, etc., Co. v. Perriguey, 138 Ind. 414, 430, 34 N. E. 233, 37 N. E. 976;Pittsburgh, etc., Co. v. Cozatt, 39 Ind. App. 682, 79 N. E. 534;Evansville, etc., Co. v. Bailey, 43 Ind. App. 153, 84 N. E. 549;Cincinnati, etc., Co. v. Acrea, 40 Ind. App. 150, 81 N. E. 213; Ring v. Cohoes, 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, etc., Co., 164 Ind. 413, 73 N. E. 899;Town v. Linquist, 138 Ind. 566, 573, 37 N. E. 133;Cole Bros. v. Wood, 11 Ind. App. 37, 61, 36 N. E. 1074;Evansville, etc., Co. v. Allen, 34 Ind. App. 636, 73 N. E. 630;Louisville, etc., Co. v. Davis, 7 Ind. App. 222, 233, 33 N. E. 451;Board of Commissioners v. Sisson, 2 Ind. App. 311, 317, 28 N. E. 374.

[5] The jury find that appellee was a car inspector, and that the switching crew knew it; that he inquired of the conductor after the crew had set four cars on the transfer track whether there were to be any more cars set there, and the conductor answered in the negative; that no inquiry was made of any other person, nor did any other person hear the inquiry and answer; the conductor knew at that time that appellee inspected cars, that the conductor did not...

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