Louisville, New Albany And Chicago Railway Co. v. Quinn

• Decision Date: 10 March 1896
• Docket Number: 1,687
• Citation: 43 N.E. 240,14 Ind.App. 554
• Parties: LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. QUINN
• Court: Indiana Appellate Court

43 N.E. 240

14 Ind.App. 554

LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY v. QUINN

No. 1,687

Court of Appeals of Indiana

March 10, 1896

From the Lawrence Circuit Court.

Judgment reversed, with instruction to enter judgment in favor of appellant.

E. C Field, for appellant.

Dunn & Lowe, for appellee.

OPINION

GAVIN, C. J.

This was an action by a servant against the master, to recover damages for personal injuries.

The only question argued relates to the correctness of the court's ruling in rendering judgment in favor of appellee upon the special verdict.

Appellant was engaged in widening a tunnel on its road. The roof of the tunnel was supported by wooden bents extending across it their ends resting on upright posts at each side. Along these bents was laid lagging, consisting of wooden boards of irregular lengths and widths, which jointed on the various bents, apparently without any regularity. Upon the lagging rested about two and one half feet of loose dirt and stones which had come down from the roof above. Appellee was foreman of a gang of workmen, and had been engaged at work in the tunnel for three months, the latter half of the time as foreman and the former as laborer, tearing down the old bents and getting the tunnel ready for new supports which were being put in. Usually each bent was pulled down in regular order as it was reached, but upon this occasion, the general foreman, Conner, in control of the various gangs of men, ordered appellee with his men to pull out the fourth bent, which would leave three standing disconnected, or substantially so, from the remaining old bents. They did so, and as a result, not only the fourth bent but the other three came down, the latter falling toward appellee and his men, and covering appellee with the dirt and debris from above them.

The negligence charged against appellant, and relied upon by the appellee, as stated in his counsel's brief, is that contained in the following part of his complaint: "Plaintiff avers that the lagging or heavy boards on top of said bents jointed on top of the fourth bent and did not joint again on top of the third bent, but jointed back on top of the first or second bent, which fact plaintiff did not and could not know, and which fact the defendant and said Conner well knew, and negligently failed to inform plaintiff thereof; by reason of which negligence plaintiff was injured, as hereinafter more fully appears."

The condition of things in this paragraph set forth, is all there was connected with the tunnel or the work of which appellee avers his ignorance.

In considering the verdict it must be borne in mind that the burden rests upon appellee to present to us such a verdict as embodies either directly or by necessary inference all the facts essential to his right of recovery; any fact as to which the verdict is silent must be deemed found against him upon whom rests the burden of proof with reference thereto. Austin v. McMains, 14 Ind.App. 514, 43 N.E. 141, and cases cited.

Keeping this rule in view, we learn from the verdict "that the lagging on top of said bent consisted of heavy, close laid boards of various lengths and widths, sometimes jointing on consecutive bents, sometimes on alternate bents, and sometimes of still greater lengths," covered with two and one half feet of dirt and debris, all of which defendant well knew, but under the settled rule the same knowledge must be chargeable to appellee; we learn, also, that "the lagging or boards on top of said four old bents jointed partly on each of the four bents, which fact neither the plaintiff nor defendant knew." When the lower ends of the posts supporting the fourth bent were pulled out toward the workmen, the bent fell toward the opposite direction as intended, but the three bents "being thereby detached from the other and solid bents beyond, and rendered less firm and greater weight being thereby thrown upon them, and greater leverage afforded to the loose rock and plank above jointed as aforesaid, and by reason of the plank or lagging being jointed as aforesaid, and detached from the firm and solid bents by the removal of the fourth bent suddenly fell backward" (toward plaintiff), striking him, etc.

Thus, under the verdict, the only thing of which appellee was ignorant was the precise manner in which the lagging on these four bents jointed, that is, "partly on each of the four bents." Yet while he may not have known exactly how these particular pieces of lagging jointed, we must conclude that he knew the general manner of construction, and we cannot perceive that the lagging on these bents was put on in any other manner than one might reasonably expect from the general mode of construction.

It is thoroughly established, as a rule of law, that the master must use reasonable care to provide his employes with safe working places and appliances. Kentucky, etc., Bridge Co. v. Eastman, 7 Ind.App. 514, 34 N.E. 835; Evansville, etc., R. R. Co. v. Holcomb, 9 Ind.App. 198, 36 N.E. 39; Lynch v. Chicago, etc., R. R. Co., 8 Ind.App. 516, 36 N.E. 44; Linton, etc., Mining Co. v. Persons, 11 Ind.App. 264, 39 N.E. 214.

This duty is a continuing one, and it devolves upon the master to exercise reasonable care to keep the servant's working place safe. Hancock v. Keene, 5 Ind.App. 408, 32 N.E. 329; Evansville, etc., R. R. Co. v. Holcombe, supra; Island Coal Co. v. Risher, 13 Ind.App. 98, 40 N.E. 158; Nall, Admx., v. Louisville, etc., R. W. Co., 129 Ind. 260, 28 N.E. 183.

The servant assumes the usual, ordinary, and obvious risks incident to his service, but not those increased risks added by the negligence of the master of which he had no knowledge. Evansville, etc., R. R. Co. v. Holcombe, supra; Island Coal Co. v. Risher, supra; G. H. Hammond Co. v. Mason, Admr., 12 Ind.App. 469, 40 N.E. 642; New York, etc., R. W. Co. v. Ostman (Ind. Sup.), 41 N.E. 1037; Salem, etc., Stone Co. v. Griffin, 139 Ind. 141, 38 N.E. 411.

In the latter case the court, by Hackney, J., says: "Implied assumptions of risk are only such as...