Lake Erie & Western Railroad Co. v. Charman

• Decision Date: 18 June 1903
• Docket Number: 20,039
• Citation: 67 N.E. 923,161 Ind. 95
• Court: Indiana Supreme Court
• Parties: Lake Erie & Western Railroad Company et al. v. Charman, Administrator

67 N.E. 923

161 Ind. 95

Lake Erie & Western Railroad Company et al. v. Charman, Administrator

No. 20,039

Supreme Court of Indiana

June 18, 1903

From Delaware Circuit Court; J. G. Leffler, Judge.

Action by Richard Charman, administrator of the estate of Frank Coffman, deceased, against the Lake Erie & Western Railroad Company and another. From a judgment for plaintiff defendants appeal. Transferred from Appellate Court, under § 1337u Burns 1901.

Reversed.

J. B Cockrum, W. H. H. Miller, J. B. Elam, J. W. Fesler, S.D Miller, R. S. Gregory, A. C. Silverburg and W. J. Lotz, for appellants.

R. C. White, I. J. Young, W. W. Mann and Lincoln Lesh, for appellee.

OPINION

Hadley, J.

Suit by appellee against appellants to recover damages for negligently causing the death of Frank Coffman, appellee's decedent. The complaint is in two paragraphs, to which appellants separately demurred for insufficiency of facts--the railroad company generally, and Oliver to each paragraph thereof. These demurrers were overruled, and appellants answered jointly by general denial. Trial by jury, and a general verdict against both defendants for $ 2,100, with which were returned answers to a large number of interrogatories.

Appellants have separately assigned as error the overruling of the demurrers to the complaint, the overruling of their separate motions for judgment on the answers to interrogatories notwithstanding the general verdict, and their motions for a new trial.

The first paragraph of the complaint alleges, in substance, that the deceased was a brakeman and a member of a switching crew in the yard of appellant railroad company at Muncie, Indiana; that on the 29th day of October, 1899, while the decedent was in the performance of his duties as a brakeman, he was negligently commanded by the defendant railroad company, and its codefendant Oliver who was then the duly appointed and acting yardmaster of said railroad company in charge of its said Muncie yard, and to whose orders decedent was then and there bound to conform, to go between and couple, by means of a chain, two broken and damaged cars which were without deadwoods or sufficient drawbar, and had nothing to prevent a full end face collision when said cars were set in motion; that while conforming to said command, and while between the damaged cars, where he was required to be to effect said coupling, the defendants negligently, and without notice or warning to the decedent, caused and permitted a locomotive controlled by the railroad company's servants to be propelled in and upon the track in said yards, upon which the decedent was engaged in making said coupling, and against the train of which the damaged cars were a part, thereby suddenly and violently pushing said damaged cars together, whereby the decedent was crushed and instantly killed.

1. The objection presented to the first paragraph is that its averments fail to show that the plaintiff was appointed administrator for the specific purpose of prosecuting this action, the argument being that a general administrator is not authorized to bring such suit, for the reason that he represents the estate of the deceased generally, and not the widow and children or next of kin. We are unable to approve this argument. The action given by § 285 Burns 1901 is the creation of a new and independent right. Pittsburgh, etc., R. Co. v. Hosea, 152 Ind. 412, 53 N.E. 419, and cases cited. When a new right is created by statute, and a mode prescribed for its enforcement, that mode must be pursued to the exclusion of all others. Storms v. Stevens, 104 Ind. 46, 3 N.E. 401; Boyd v. Brazil Block Coal Co., 25 Ind.App. 157, 57 N.E. 732.

The legislature, for reasons of its own, designated the personal representative of the deceased, who is understood to be the administrator of such deceased person's estate, as the only person competent to prosecute an action under said section. It doubtless had in view cases where there should be a failure of widow and children, or where the beneficiaries should be minors or numerous, and as a matter of convenience deemed it expedient to provide for the prosecution of such actions by a trustee for the use of the persons entitled. The designation of the personal representative of the deceased as such trustee would seem to have no other significance than is implied from the fact that such officer is convenient, and usually selected for his probity and friendly relation with the family of the deceased. There is nothing in the language of the statute that suggests the appointment of a special representative for the single purpose of prosecuting the suit. There is nothing in the act forbidding one person from acting in both capacities. There is no duty imposed by the act that may become inconsistent with the duties of a general administrator. And, in fine, an administrator, clothed with no other powers or duties but to prosecute a suit for the benefit of the widow and children would be in no sense the personal representative of the deceased. So we conclude that the general administrator of the estate of a decedent is the personal representative of such deceased person within the meaning of § 285, supra, and the only proper plaintiff in the action given by said section. The first paragraph of the complaint is therefore good.

The railroad company's demurrer being general to the complaint, it was properly overruled upon finding the first paragraph sufficient. It therefore serves no useful purpose to consider the second paragraph, so far as the railroad company is concerned.

The second paragraph of complaint, in addition to the allegations set forth in the first paragraph, contained averments that the death of Coffman was caused by the negligence of an engineer in the service of the company and in charge of one of the company's locomotive engines. Whether these averments, and some others concerning the ordering of Coffman to perform a service outside, and not embraced within, the terms of his contract of employment, were sufficient as against the company, can not be challenged by appellant Oliver on his separate demurrer to a paragraph that clearly states a cause of action against him on other grounds. The averments of both paragraphs sufficiently show that the proximate cause of the accident was the combined acts of Oliver in ordering the deceased into a dangerous place, and, while there engaged, and without any notice or warning, causing an engine to be run against the cars, suddenly and violently pushing them together, and are clearly sufficient under § 7083 Burns 1901. Louisville, etc., R. Co. v. Wagner, 153 Ind. 420, 53 N.E. 927. The averments also show that Oliver was, at least under § 7083, supra, acting as a vice-principal, and not as a fellow servant, and, though his negligence was the negligence of his principal, he is also personally liable therefor as a joint tort-feasor, and may be properly joined with the railroad company in an action to recover for the injury. See this same case (Chapman v. Lake Erie, etc., R. Co.) in 105 F. 449, on motion to remand to state court, where the precise question is fully considered, and, we think, correctly decided. See, also, Wright v. Compton, 53 Ind. 337; McNaughton v. City of Elkhart, 85 Ind. 384; South Bend Mfg. Co. v. Liphart, 12 Ind.App. 185, 39 N.E. 908. Cooley, Torts (2d ed.), 164. The demurrers to the complaint were properly overruled.

2. It is next insisted by each of the appellants that the court erred in overruling his separate motion for judgment upon the answers to interrogatories notwithstanding the general verdict. The answers referred to disclose the following facts: At the time of his death Coffman, plaintiff's intestate, was in the employ of appellant railroad company and belonged to a switching crew composed of McGill, as foreman, and the decedent and one Dowd as brakemen. This crew used engine thirty-two, and, with two or three other like crews, their duties were confined to the switching of cars, and the making up of trains in appellant's railroad yard at Muncie. Appellant Oliver was his co-appellant's yardmaster at Muncie, and all the employes in the yard, including the foremen or conductors of said switching crews, were subject to his orders and directions, as were also all employes operating through and out trains with respect to where they should go with their engines and trains in the yard. The yard crews had precedence over the crews of through trains in the use of the sidings and spur tracks of said yard, and a conductor or foreman of a local crew could require crews of through or outgoing trains to keep off side-tracks where such local crew was making up a train. During the early morning of October 29, 1899, the night crew made up freight-train 120 on side-track number seven, which train was scheduled to leave Muncie for the east about 7 o'clock a. m., immediately after the passage of a west-bound passenger-train due at that hour. The deceased belonged to the day switching crew, and with his companion Dowd, and foreman McGill, came on duty at 7 o'clock a. m. Howard, the yardmaster, came into the yard at the same time. The caboose of train 120 was at the west end of the train, and east of it were about eighteen freight-cars, mostly coupled together, extending to near the east end of track number seven. The second car east of the caboose was a broken or damaged car, so broken that it could not be coupled to the adjoining car in the usual way, with an interval of two feet between the broken car and the car next east. Appellant Oliver went to the caboose of train 120 and procured therefrom a chain carried for such purpose, and went with decedent and his switching mate Dowd to chain the broken car to the one east of it, to be hauled to...