Louisville, New Albany And Chicago Railway Co. v. Bates
| Decision Date | 11 November 1896 |
| Docket Number | 17,357 |
| Parties | Louisville, New Albany and Chicago Railway Company v. Bates, Administrator |
| Court | Indiana Supreme Court |
Rehearing Denied Jan. 12, 1897.
From the White Circuit Court.
Reversed.
E. C Field and W. S. Kinnan, for appellant.
Artman & Lewis and Davidson & Storms, for appellee.
Appellee 's intestate, while in appellant's service as brakeman, was killed when in the act of coupling cars upon appellant's road, and this action was brought to recover damages therefor upon the ground that his death was caused by appellant's negligence.
Appellant's demurrer for want of facts to the amended complaint was overruled. After issue was joined the cause was tried by a jury and a special verdict returned.
Appellant moved the court to render judgment in its favor on said verdict, which motion the court overruled and rendered judgment in favor of appellee.
These rulings of the court are severally assigned as error.
The objections urged against the complaint are such as could only be presented by a motion to make more specific.
It has been uniformly held in this State that a general allegation of negligence is sufficient to withstand a demurrer for want of facts, unless the contrary appears from the facts pleaded, and that under such allegation the facts constituting the negligence may be given in evidence. The same rule applies to the averment that the injured party was without fault or negligence. Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; City of Elkhart v. Witman, 122 Ind. 538, 23 N.E. 796; Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160; Hammond v. Schweitzer, 112 Ind. 246, 13 N.E. 869; Louisville, etc., R. W. Co. v. Jones, 108 Ind. 551, 9 N.E. 476, and cases cited; Town of Rushville v. Adams, 107 Ind. 475, 57 Am. Rep. 124, 8 N.E. 292.
It is equally well settled that a defendant in an action for personal injuries is entitled to have the complaint state the specific acts or omissions of the defendant which constitute the negligence relied upon, as well as all the surroundings and existing conditions and what occurred at the time of the injury. Peerless Stone Co. v. Wray, 143 Ind. 574, 42 N.E. 927; Pittsburgh, etc., R. W. Co. v. Adams, supra; Pittsburgh, etc., R. W. Co. v. Hixon, 110 Ind. 225, 11 N.E. 285; Cincinnati, etc., R. W. Co. v. Gaines, 104 Ind. 526; 54 Am. Rep. 334, 4 N.E. 34; Town of Rushville v. Adams, supra; Louisville, etc., R. W. Co. v. Shanklin, 94 Ind. 297; Louisville, etc., R. W. Co. v. Krinning, 87 Ind. 351.
While this is true, it requires a motion to make more specific to obtain such relief, and unless such motion has been made and overruled and proper exception saved, no question can be presented here as to such matter. The court did not err in overruling the demurrer to the amended complaint.
The special verdict shows that appellant received a car from another company at Frankfort, Indiana, for transportation over its lines, and that appellee was injured while attempting to couple the same to a locomotive on appellant's road.
The first question presented by the motion for a judgment on the special verdict in favor of appellant is as to the liability of railroad companies to employes for injuries occasioned by a defect in foreign cars received only for transportation over its lines.
It is the duty of a railroad company to exercise ordinary care in furnishing reasonably safe cars and other appliances, and also to exercise ordinary care by inspection and repair to keep them in reasonably safe condition, so as not to unreasonably expose its employes to unknown and extraordinary hazards. Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440; Louisville, etc., R. R. Co. v. Orr, 84 Ind. 50; Louisville, etc., R. W. Co. v. Buck, 116 Ind. 566, 19 N.E. 453; Cincinnati, etc., R. R. Co. v. McMullen, 117 Ind. 439, 20 N.E. 287; Hoosier Stone Co. v. McCain, Admr., 133 Ind. 231, 31 N.E. 956.
The railroad company is not required to furnish cars or appliances that are absolutely safe, or to maintain them in that condition. The company is not an insurer of the safety of the employes against injury. Indiana Car Co. v. Parker, 100 Ind. 181. Cincinnati, etc., R. W. Co. v. Roesch, 126 Ind. 445, 26 N.E. 171; Titus v. Railroad Co., 136 Pa. 618, 20 Am. St. 944, 20 A. 517; Washington etc., Railroad Co. v. McDade, 135 U.S. 554, 570, 34 L.Ed. 235, 10 S.Ct. 1044, and cases cited.
The company is not liable for injuries caused by hidden defects of which it had no knowledge, and of which it could not have known by the exercise of ordinary care.
The master is only charged with knowledge of that which by the exercise of ordinary care he would have discovered.
He is not required to resort to tests that are impracticable, or unreasonable and oppressive, or which would be incompatible with the proper furtherance of business, and which are only required to insure absolute safety. Smith v. Chicago, etc., R. W. Co., 42 Wis. 520; Grand Rapids, etc., R. W. Co. v. Huntley, 38 Mich. 537, 546, and cases cited; DeGraff v. New York, etc., R. W. Co., 76 N.Y. 125; Lafflin v. Buffalo, etc., R. W. Co., 106 N.Y. 136, 60 Am. Rep. 433, 12 N.E. 599; Flood v. W. U. Tel. Co., 131 N.Y. 603, 30 N.E. 196; Phila., etc., R. R. Co. v. Hughes, 119 Pa. St. 301, 33, 13 A. 286 Am. and Eng. R. R. Cases, 348, and note 13 A. 286; Wharton on Negligence, p. 213.
If the duty of inspection has been performed with ordinary care and a defect is found afterwards to exist, but not discovered at the time, the master is not liable for an injury caused thereby, unless he had knowledge of such defect. Hull v. Hall, 78 Me. 114, 3 A. 38; Wason v. West, 78 Me. 253, 3 A. 911; Baldwin v. St. Louis, etc., R. W. Co., 68 Iowa 37, 25 N.W. 918.
The duty of a railroad company as to foreign cars received in regular course of business for transportation over its lines is that of exercising ordinary care in inspecting the same to see if they are in reasonably safe condition of repair, and if found to be out of repair to put them in a reasonably safe condition of repair, or notify its employes of the condition of such cars. Appellant, therefore, owed its employes the duty of making proper inspection of the car in question, and either repairing or giving notice of its defects, if any were found. Chicago, etc., R. R. Co. v. Fry, 131 Ind. 319, 28 N.E. 989; Cincinnati, etc., R. R. Co. v. McMullen, supra; Penn., etc., R. W. Co. v. Sears, 136 Ind. 460, 34 N.E. 15; Pittsburgh, etc., R. W. Co. v. Adams, supra; Louisville, etc., R. W. Co. v. Wright, 115 Ind. 378, 16 N.E. 145; Salem Stone Co. v. Griffin, 139 Ind. 141, 38 N.E. 411.
The inspection which a company is required to make of such a car is not merely a formal one, but should be made with ordinary care, that is, the inspection should be such as the time, place, means and opportunity, and the requirements and exigencies of commerce will permit. If the company has used ordinary care to secure competent inspectors and inspection is made with ordinary care, under the circumstances, taking into consideration the time, place, means and opportunity for inspection, and the defects, if any discovered, are repaired or due notice thereof given to the employe, the duty resting upon the company is discharged. It is not liable for injuries caused by hidden defects which could not be discovered by such inspection as the exigencies of the traffic will permit. Chicago, etc., R. W. Co. v. Fry, supra.
The company receiving such foreign car is not bound to repeat the tests which are proper to be used in the original construction of the car, but may assume that all parts of the car which appear upon examination to be in good condition are in such condition. Ballou v. Chicago, etc., R. W. Co., 54 Wis. 257, 11 N.W. 559, 41 Am. Rep. 31.
It would seem that if such car were old, dilapidated, or obviously defective, ordinary care would require a more careful inspection than if there was nothing unusual in its appearance. Chicago, etc., R. W. Co. v. Fry, supra, p. 327.
A railroad company is not negligent in receiving and passing over its lines cars different in construction from those owned and used by itself, if the same are not so out of repair or in such a defective condition as can be discovered by ordinary care. Baldwin v. Railway Co., 50 Iowa 680; Indianapolis, etc., R. R. Co. v. Flanigan, 77 Ill. 365; Kohn v. McNulta, 147 U.S. 238, 37 L.Ed. 150, 13 S.Ct. 298, and cases cited.
It is insisted, however, by appellant that "the court held in Neutz v. Jackson Hill Coal and Coke Co., 139 Ind. 411, 38 N.E. 324, that inspectors of a foreign car received for transportation are fellow-servants of those operating the train." The cars in that case were delivered to the Jackson Hill Coal and Coke Co., the appellee, on its switch, by a railroad company for the purpose of permitting said Jackson Hill Coal and Coke Co., the appellee, to load them with coal. Said appellee did not receive cars for transportation over any line of railroad, and was not engaged in any such business. The rule applicable to railroad companies in regard to inspecting foreign cars did not therefore apply to the appellee in that case. McMullen v. Carnegie, 158 Pa. 518, 23 L. R. A. 448, 27 A. 1043.
Appellant insists that the special verdict does not find facts from which the court can say that the inspection made was not such as is usually made by ordinarily careful and prudent inspectors under like...
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