Louisville & N.R. Co. v. Kemper

• Decision Date: 23 May 1899
• Citation: 53 N.E. 931,153 Ind. 618
• Parties: LOUISVILLE & N. R. CO. v. KEMPER.
• Court: Indiana Supreme Court

153 Ind. 618

53 N.E. 931

LOUISVILLE & N. R. CO.

v.KEMPER.

Supreme Court of Indiana.

May 23, 1899.

Appeal from circuit court, Warrick county; Edward Gough, Judge.

Action to recover for personal injuries, brought by John M. Kemper against the Louisville & Nashville Railroad Company. From a judgment in favor of plaintiff, defendant appealed. Affirmed.Gilchrist & De Bruler, for appellant. W. A. Cullop, G. V. Menzies, and Azro Dyer, for appellee.

DOWLING, J.

This case comes here for the second time. On the first appeal, the judgment was reversed for the error of the trial court in overruling a demurrer to the complaint. 147 Ind. 561, 47 N. E. 214. The complaint was afterwards amended, issues were formed, and upon the trial of the cause there was a judgment in favor of the appellee. The railroad company again appeals. The errors assigned are: (1) The overruling of the demurrer to the first paragraph of the complaint; (2) the overruling of the demurrer to the second paragraph of the complaint; (3) the overruling of appellant's motion for judgment in its favor on the interrogatories and answers thereto returned by the jury with their verdict; and (4) the overruling of appellant's motion for a new trial.

The objections to the complaint as amended are, in substance, the same as those successfully urged against the complaint originally filed. They are directed chiefly against those parts of the pleadings which describe the negligent acts and omissions of the appellant, and the injurious consequences of those acts and omissions to the appellee, and which negative knowledge of the defective and unsafe condition of the railroad track on the part of the latter. After the formal allegations concerning the corporate character and the business of appellant, and the employment of appellee, the first paragraph of the complaint proceeds: “That by the terms of plaintiff's employment it was his duty to handle freight in and about said depot, and to transfer freight from loaded cars into said depot, and from said depot into said cars; and in the discharge of said employment it was the duty of the plaintiff to move and assist in moving by pushing and hauling the same, freight cars along said track to and from said freight depot. That, heretofore, to wit, on the 29th day of June, 1894, and for a long time prior thereto, the defendant had negligently permitted that part of its said track which ran along and in front of said freight depot to become defective, and in a dangerous condition, by permitting a large volume of water to flow over and under said track to a point opposite the receiving door of said freight depot, which caused the earth on which the ties and rails were laid to become soft and yielding, and liable to sink when any considerable weight was drawn or hauled over said track. That said defective condition of the track, on the date aforesaid, was known to the defendant, and unknown to the plaintiff. That on the date aforesaid the plaintiff, at or near a point on said track in front of the receiving door of said depot, attempted, in the discharge of his duty, to couple two (2) freight cars, but, owing to the defective coupling link of the rear car, failed, and was unable to do so. That as the rear freight car of the two which the plaintiff was at the time attempting to couple came in contact with the drawhead of the forward car, on failing to couple with it, it rebounded or kicked back. That immediately after attempting to couple the said two cars, the plaintiff, in the proper discharge of his duty, placed his left shoulder on the rear of the car in front of him for the purpose of pushing said car forward in front of the receiving door of said depot, with both feet outside of the rail, but his right foot next to the rail, for the purpose of pushing said car as aforesaid. That while in this attitude the freight car immediately in the rear of him came forward over the defective portion of the said track, by reason of the defective condition of the same, and by its weight, suddenly caused a great depression in the track, and caused plaintiff's foot which was next to and adjoining the track to suddenly, and without any neglect on the part of the plaintiff, slip upon and over the rail. That, before the plaintiff could remove his foot from the rail the forward truck of the rear car suddenly, and without any fault or negligence on the part of the plaintiff, ran on and over his right foot, cutting and mangling the same, and a large part thereof was thereby crushed, removed, and destroyed.” It is probably true, as contended for by counsel for appellant, that the defective condition of the coupling link had nothing to do with the injury to appellee, and that, under the averments of this paragraph, there could be no recovery on account of such defective coupling link. Hannigan v. Railway Co. (N. Y. App.) 51 N. E. 992. But the recital of the fact of the attempt to couple the two cars, and its failure because of such defective link, was a proper part of the narrative of the circumstances which resulted in the injury to appellee, and at least rendered that narrative more easily intelligible. The obligation of the master to furnish to the servant a reasonably safe place in which to work, if the character of the employment makes it possible for him to do so, and the duty of the master to supply the servant with reasonably sound and safe machinery and appliances with which to perform his labor, with the further and continuing duty to exercise ordinary care to keep such place safe, and such machinery and appliances sound and safe, are universally recognized, and the rules on the subject are of general application. Coal Co. v. Young, 117 Ind. 520, 20 N. E. 423;Railway Co. v. Graham, 124 Ind. 89, 24 N. E. 668;Car Co. v. Parker, 100 Ind. 181; Railway Co. v. Rowan, 104 Ind. 88, 3 N. E. 627;Krueger v. Railway Co., 111 Ind. 51, 11 N. E. 957;Pennsylvania Co. v. Brush, 130 Ind. 347, 28 N. E. 615; Same v. Sears, 136 Ind. 460, 34 N. E. 15, and 36 N. E. 353. The work of handling and moving cars on railroad tracks in the manner described in the complaint is at all times, and under the most favorable conditions, difficult, and, to some extent at least, dangerous. The safety of the men employed depends largely on the soundness and stability of the track, its rails, crossties, and roadbed, and the proper and sound equipment of its cars and other rolling stock. Imperfections in any of these invite disaster, and are a constant menace to the life and safety of every employé. The fact that a portion of a railroad bed underneath the crossties had been permitted to become soaked and soft by reason of the flow of water from a hydrant of the company, so that the rails and cross-ties would sink down when the weight of a car was placed upon them, this dangerous condition not being obvious and apparent, but being known to the master, or by the exercise of ordinary care discoverable by him, constituted a breach of the duty of the company to keep and maintain the roadway in a sound and safe condition for the protection and security of its employés.

In the case of Railroad Co. v. Lowe, 10 Ind. 554, in speaking of the duty of the master to furnish a safe roadway, and to inform the servant of unusual dangers, it is said: “If a defect existed in the road, which was known to the company, but which it was impossible for them to immediately remove or remedy, and in consequence thereof the road was unsafe, but not impassable, and yet they should place an employé upon the road, and suffer him, in ignorance of said defect, to operate it, and injury should thereby result to him, certainly there would be a liability.” Where such defects exist, and where they are not plain and obvious, or known to the employés, but are known to the master, or discoverable by the exercise of ordinary care, the master can exonerate himself only by repairing them at once, or by notifying his servants of their existence, and of the increased danger. We think it sufficiently appears from the averments of the first paragraph of the complaint that the railroad of appellant, at the point in front of the warehouse, was, at the time of the accident, defective and dangerous; that the defect was known to appellant; that it was of such a character as not to be obvious and apparent; and that appellee had no knowledge of its existence. It is expressly stated that the defect was in the foundation on which the cross-ties rested, and nothing in the pleading indicates that this defect could be discovered by a superficial examination of the track. The accident to appellee was a very natural consequence of the condition of the roadbed. He was engaged in pushing a freight car towards the warehouse. His left shoulder was pressed against the end of the car, and his weight was thrown upon his feet, which were near to the rail. While he was so occupied and engrossed with his task, the rails and cross-ties, unable to sustain the weight of the rear car, suddenly sunk down some two or three inches, thereby removing the support the rail gave to appellee's footing, his foot slipped upon the sunken rail, and the wheels of the rear car ran upon and crushed it. In this occurrence, as described in the first paragraph, we find no element of negligence or lack of care on the part of the appellee. The condition of the track was such that an accident of some kind might reasonably have been anticipated. The mischief was such as ought to have been foreseen, and, if the matters stated in the pleading were true, the company was negligent in failing to repair the defect in the roadway,...