Louisville v. Sandford

• Decision Date: 30 January 1889
• Parties: Louisville, N. A. & C. Ry. Co. v. Sandford.
• Court: Indiana Supreme Court

117 Ind. 265

19 N.E. 770

Louisville, N. A. & C. Ry. Co.

v.Sandford.¹

Supreme Court of Indiana.

January 30, 1889.

Appeal from circuit court, Floyd county; Charles P. Ferguson, Judge.

Action by Emma M. Sandford, administratrix, etc., of Charles W. Sandford, deceased, against the Louisville, New Albany & Chicago Railway Company, to recover for the death of plaintiff's intestate, caused by defendant's alleged negligence. Verdict and judgment for plaintiff for $3,500, and defendant appeals.

Geo. W. Easley, Geo. W. Friedley, Chas. L. Jewett, Henry E. Jewett, and Geo. R. Eldridge, for appellant. A. Dowling, for appellee.

Elliott, C. J.

The appellee alleges in her complaint that Charles W. Sandford, her intestate, was in the appellant's service in the capacity of a baggage-master; that on the line of the appellant's railroad, and forming part of its road, was a bridge across a stream; that on the 24th day of December, 1883, and for a long time prior to that day, the appellant had negligently permitted the bridge to become unsafe; that the piers were weak, and not capable of resisting the force of floods to which the stream was subject; that on the 24th day of December, 1883, while the plaintiff's intestate was being carried over the road as baggage-master, the bridge fell, and without fault on his part he was killed.

The complaint sufficiently shows that the plaintiff's intestate was not guilty of contributory negligence, for the general averment that he was without fault excludes the existence of contributory negligence. Railroad Co. v. Crist, ante, 310, (this term;) Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234; Mitchell v. Robinson, 80 Ind. 283;Railway Co. v. Wright, Id. 182.

But there is no averment that the intestate was ignorant of the unsafe condition of the bridge, and the omission of this averment presents the only difficult question arising on the demurrer to the complaint. The general rule is that an employer must use reasonable care, skill, and diligence to provide his employes with a safe working place, and that he must also make reasonably safe the machinery and appliances which the nature of the service requires his employes to use. Car Co. v. Parker, 100 Ind. 181;Railroad Co. v. Rowan, 104 Ind. 88, 3 N. E. Rep. 627; Krueger v. Railway Co., 111 Ind. 52, 11 N. E. Rep. 957; Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. Rep. 380; Railroad Co. v. Wright, 116 Ind. ---, 17 N. E. Rep. 584; Railway Co. v. Buck, ante, 453, (January 10, 1889.)

This rule requires a railroad company to construct and maintain the bridges which carry its rails across brooks and rivers in a reasonably safe condition. The employes enter its service under an implied contract that this duty will be performed, and under this contract they impliedly assume all the ordinary perils of the service. Employes assume all the ordinary risks incident to the employment, but they assume no extraordinary risks caused by the employer's breach of duty, unless they have knowledge of the unusual danger caused by the breach, and voluntarily continue in the company's employment. If with this knowledge they do continue, then the increased danger becomes an incident of the service which they assume, and for liability from which the master is exonerated. Railway Co. v. Watson, 114 Ind. 20, 14 N. E. Rep. 721, and 15 N. E. Rep. 824.

The knowledge of the danger adds it as one of the incidents of the employment which the employe assumes. It becomes a danger which his continuance in the master's service makes an incident of the service, and when it takes this character the master is no longer bound to answer for the employe's safety, so far as it is imperiled by the danger voluntarily and knowingly assumed. The knowledge, in conjunction with the continuance in the service, operates as a waiver of the right to make the master responsible. “It is,” says Mr. Beach, “the rule applicable to this matter that if the servant, when the defect or danger is brought to his knowledge,-when he discovers that the machinery, buildings, premises, tools, or any other instrumentalities of his labor, are unsafe or unfit, or that a fellow-servant is careless or incompetent,-continues in the employment without protest or complaint, he is deemed to assume the risks of such danger, and to waive any claim upon his master for damages in case of injury.” Beach, Contrib. Neg. § 140. This puts the rule exonerating the master on the true ground. He is exonerated because the employe himself assumes the danger as increased, and as he voluntarily assumes it the master is relieved. The parties change positions. The employe assumes the risk that, if it were not for his knowledge, his employer would be compelled to assume. The duty which the employer is under is materially affected by the element of knowledge, and, unless a duty is shown, of course there can be no actionable negligence, since a duty lies at the foundation of every right of action grounded on the negligence of a defendant. It must follow, in order to show a breach of duty creating a cause of action for its breach, that it is necessary to aver that the employe was ignorant of the default of the employer which increased the perils of the service. The plaintiff in such a case is the actor, and must show a complete cause of action, and, to do this, he must aver facts showing that the danger which augmented the risks of his service was not known to him. In at least two cases this court has explicitly assumed this doctrine. Railroad Co. v. Stupack, 108 Ind. 1, 8 N. E. Rep. 630; Railway Co. v. Dailey, 110 Ind. 75, 10 N. E. Rep. 631.

From these decisions we should not depart, unless thoroughly satisfied that they are unsound in principle, and of this we are far from being convinced. There is some conflict in the authorities as to the principle upon which rests the rule exonerating the employer from liability in cases where the employe continues in the...