Lake Shore & M.S. Ry. Co. v. Stupak

• Decision Date: 12 October 1886
• Citation: Lake Shore & M.S. Ry. Co. v. Stupak, 108 Ind. 1, 8 N.E. 630 (Ind. 1886)
• Court: Indiana Supreme Court
• Parties: Lake Shore & M. S. Ry. Co. v. Stupak.

108 Ind. 1

8 N.E. 630

Lake Shore & M. S. Ry. Co.

v.Stupak.

Supreme Court of Indiana.

October 12, 1886.

Appeal from Porter circuit court.

Morris, Aldrich & Barrett, James I. Best, Ashley Pond, and O. G. Getzendanner, for appellant.

The points made and authorities cited by appellant's counsel appear in the opinion.

Bartholomew & Crumpacker, for appellee, cited the following authorities in support of the proposition that the averment in the complaint that the injury was caused without fault or negligence of the appellee is sufficient to overcome any possible presumption of negligence from the facts alleged: Pittsburgh, C. & St. L. Ry. Co. v. Conn, 3 N. E. Rep. 636;Board Com'rs v. Legg, 93 Ind. 523;Rogers v. Overton, 87 Ind. 410;City of Washington v. Small, 86 Ind. 462;Town of Rushville v. Poe, 85 Ind. 83;Murphy v. City of Indianapolis, 83 Ind. 76;Pittsburgh, C. & St. L. Ry. Co. v. Wright, 80 Ind. 182;Town of Salem v. Goller, 76 Ind. 291;Reist v. City of Goshen, 42 Ind. 339.And in support of the proposition that it was, in each case, a question for the jury solely to determine whether either the appellant or the appellee was chargeable with notice of the unfitness and incompetency of the engineer, they cite Indiana Car Co. v. Parker, 100 Ind. 181;City of Washington v. Small, 86 Ind. 462;City of Logansport v. Justice, 74 Ind. 378;Ohio & M. Ry. Co. v. Collarn, 73 Ind. 261;City of Indianapolis v. Scott, 72 Ind. 196;Pennsylvania Co. v. Hensil, 70 Ind. 569.

Howk, C. J.

The first error of which complaint is here made by appellant, the defendant below, is the overruling of its demurrer to the first paragraph of appellee's complaint.In this first paragraph appellee alleged that appellant was a railroad corporation owning and operating a railroad over and across Porter county, Indiana; that, in the operation of its railroad, appellant ran a certain locomotive engine and construction train, composed of flat cars, used for hauling gravel, etc., west ward from La Porte, Indiana; that such locomotive and train of cars had been so used by appellant for five years before the commencement of this suit; that on such train of cars appellant had in its employ a large number of hands, who resided at different points along its railroad, and were conveyed by such train to and from their places of labor, night and morning; that appellant had in its employ, for a year prior to the thirteenth of August, as engineer of the locomotive engine used to propel such construction train, one ------ Pool, who was habitually careless and negligent in the discharge of his duties as such engineer during all of said time, and was not possessed of sufficient skill to run said engine in an ordinarily careful and prudent manner,-of all which appellant had due notice, but negligently retained said Pool in its employ as such engineer.Appellee further alleged that some time during July, 1883, he, being wholly unacquainted with said Pool, and with appellant's employes in charge of such construction train, entered the service of appellant as one of its laborers or work hands upon such construction train, and as a track repairer of its road-bed; that on or about such thirteenth day of August, 1883, the appellee, while in appellant's employ upon such construction train, was standing upon one of the cars of such train, while the same was standing still, and while the locomotive engine attached thereto was in the management and control of said Pool, when, without any fault or negligence upon appellee's part, said Pool negligently, and without any signal or warning, suddenly put said engine and train of cars in rapid motion, whereby appellee was thrown off his feet, between two cars, and his arms were crushed and broken in such a manner as to be permanently disabled, and his person was otherwise mangled, cut, and bruised, causing him great physical and mental suffering, etc., to his damage, etc.; all of which was wholly without his fault, but owing to the fault and negligence of said Pool, as aforesaid, and of the appellant in keeping said Pool in its employ, as such engineer, after notice of his unskillful and negligent habits in running said engine as aforesaid.Wherefore, etc.

It is claimed by appellant's counsel that this paragraph of complaint was insufficient, and the demurrer thereto ought to have been sustained, for two reasons, namely: (1) Because appellee has not averred therein that he did not know of Pool's negligent habits at the time he entered appellant's service; (2) because appellee has failed to aver any excuse for his remaining in appellant's service after he knew, or should have known, of Pool's negligent habits.The general rule of law, recognized and acted upon in many of our decisions, is that the master is not liable in damages to an employe for an injury caused or occasioned by the negligence, whether of omission or commission, of a co-employe or fellow-servant.The liability to injury, resulting from the negligence of his co-employes, is one of the risks which each employe engaging with others in the service of a common master takes upon himself.Such a liability to injury is a hazard incident to the nature of the service into which the employe enters, and against which the master is not an insurer, in the absence of an express contract to that effect.Nor is the master rendered liable by the fact, if it be the fact, that the injured employe is inferior in grade of employment to the co-employe through whose negligence the injury is caused, if both were employed in the same general business, or, in other words, “if the services of each, in his particular sphere or department, are directed to the accomplishment of the same general end.”Columbus, etc., Ry. Co. v. Arnold, 31 Ind. 174;Pittsburgh, etc., Ry. Co. v. Ruby, 38 Ind. 294;Brazil, etc., Coal Co. v. Cain, 98 Ind. 282;Pittsburgh, etc., Ry. Co. v. Adams, 105 Ind. 151;S. C. 5 N. E. Rep. 187.Where, therefore,as here, the servant shows in his complaint that the injury for which he sues the master was caused or occasioned by the negligence of his fellow-servant, he must also allege in his complaint, either that the master had not exercised ordinary care and prudence in the employment of such fellow-servant, or that it had retained him in its service after it had received notice that he was negligent in the discharge of the duties of his position.This much must be stated in relation to the negligence of the master; and, with respect to himself, in such a case, the injured servant must aver in his complaint that, at the time he entered the master's service, he had no knowledge of the negligent habits of the fellow-servant through whose negligence he has alleged that he was injured.

It is for the want of this last averment, or its equivalent, that the first paragraph of appellee's complaint in the case at bar was fatally insufficient.If the appellee knew, at the time he entered appellant's service, (and we cannot presume that he did not know, in the absence of any averment to that effect,) that his fellow-servant, Pool, was habitually negligent in the discharge of his duties as an engineer, and was not possessed of sufficient skill to run an engine in an ordinarily prudent manner, it must be held, we think, that he voluntarily took upon himself all the risks incident to or growing out of Pool's negligence and lack of skill in the management of his engine.Appellee has sued the appellant to recover damages for an injury alleged by him to have been caused by the negligence of Pool, his fellow-servant.To have stated a cause of action sufficient to withstand a demurrer for the want of facts, in such a case, it was necessary that the appellee should have alleged in his complaint, not alone that appellant knew of Pool's negligence, but also that he had no knowledge thereof; for, if he had knowledge of Pool's negligent habits, and entered appellant's service with such knowledge, he thereby consented to serve with Pool in the way and manner in which Pool conducted appellant's business, and, having so consented, he can have no sufficient grounds of complaint against appellant for an injury caused by or resulting from Pool's negligent habits.Sullivan v. India Manuf'g Co., 113 Mass. 396;Gibson v. Erie Ry. Co., 63 N. Y. 449;De Forest v. Jewett, ...