Matchett v. Cincinnati

• Decision Date: 14 September 1892
• Citation: 31 N.E. 792,132 Ind. 334
• Court: Indiana Supreme Court
• Parties: Matchett v. Cincinnati, W. & M. Ry. Co.

132 Ind. 334

31 N.E. 792

Matchett

v.Cincinnati, W. & M. Ry. Co.

Supreme Court of Indiana.

Sept. 14, 1892.

Appeal from circuit court, Grant county; R. F. St. John, Judge.

Action by Edward Matchett against the Cincinnati, Wabash & Michigan Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

John A. Kersey, for appellant. C. E. Cowgill and Cowgill, Shively & Pettit, for appellee.

ELLIOTT, J.

The substance of the appellant's complaint is this: He entered the service of the appellee as a brakeman, and his duties required him to set the brakes upon the trains on which he was required to work. On the 13th day of December, 1887, he was working on a freight train composed of many cars. He was signaled to set the brake. He undertook to discharge this duty in obedience to the signal, at the time believing that the brake and appliances were in order, and not out of repair. The brake was defective and out of repair “in this, the ratchet upon the same used to hold the brake when tightened was loose, and would not hold.” It was necessary, in setting the brake, for the brakeman to place his foot against the ratchet, so that it would catch the cogs, and hold the brake in place after the foot was removed. The brake was permitted to become unsafe and out of repair by the carelessness and negligence of the defendant. The defectin the brakes was known to the defendant, but was not known to the plaintiff. The brake was properly set by the plaintiff, and, relying upon the belief “that it was in proper condition, he removed his foot from the ratchet, and so soon as his foot was removed the brake wheel revolved with great rapidity and force,” and threw the plaintiff from the moving train, causing him serious injury. To this complaint the appellee answered in two paragraphs. The first paragraph is the general denial; the second contained these material allegations: That the plaintiff entered the service of the defendant under a contract, wherein he agreed to be bound by the rules of the company; that one of the rules made it the duty of the plaintiff to inspect the brake and its appliances, and other rules made it his duty to inspect the machinery of the train, and, if found to be defective or out of repair, to refrain from using it; that the defendant had no knowledge of the fact that the brake was out of repair prior to the happening of the accident, and had no means of knowing that fact; that the plaintiff did have the opportunity and means of knowing the condition of the brake, and it was his special duty to have such knowledge. There are other allegations in the answer of the same general character as those we have outlined, but we deem it unnecessary to summarize them. We regard the answer as a mere argumentative denial, and, thus regarded, there was no error in overruling the demurrer. It certainly denies the material allegation of the complaint that the plaintiff did not know the condition of the brake, as well as other important allegations. The general verdict was in favor of the appellant, but the trial court rendered judgment upon the answers of the jury to the special interrogatories addressed to them, so that the principal questions arise upon the facts exhibited in the answers of the jury. In answer to the second interrogatory, it is stated that the plaintiff received a copy of the defendant's rules, and agreed to observe them. In the answers to the third and fourth interrogatories, the jury give the plaintiff's age at the time of entering the defendant's service, putting it at 32 years, and they declare that he was a man of ordinary capacity, in full possession of his faculties. The answer to the fifth interrogatory shows that the brake was out of order because the “pawl was loose.” The answer to the sixth interrogatory is that “the brake fixtures were of a pattern in general use by first-class railroad companies, and, when in repair, was a good and sufficient brake.” The car to which the brake was attached is shown by the answer to the sixth interrogatory to have been made part of the train on the day of the accident. The answers to the eighth and ninth interrogatories show how many cars were on the train at Elkhart and Urbana. By the answers to the ninth and tenth interrogatories, the car is shown to have come under the charge of the plaintiff at Elkhart, and to have been upon other roads, until it came into his charge, for 30 days. The jury were asked by the eleventh interrogatory if the defect in the brake, if there was any, could not have been readily observed by the plaintiff, and they answered, “Was not shown.” In answer to the twelfth interrogatory the jury declared that it was the plaintiff's duty, according to the company's book of rules, to examine the brake, and ascertain if it was in repair and fit for use. The number of stations the train stopped at was asked for in the thirteenth interrogatory, but the jury answered that this was not shown. The answer to the fourteenth interrogatory asserts that the plaintiff did not make any examination of the brake or appliances when it was taken into the train at Elkhart. The fifteenth interrogatory asked the jury to find how long it was after the plaintiff and his train crew took charge of the train at Elkhart until the train left that place, and the jury answered that it was not shown. In answer to the sixteenth, twentieth, and twenty-third interrogatories, the jury stated that the train stopped at Goshen about 30 minutes, at Warsaw about the same length of time, and at North Manchester about 35 minutes. The answer to the twenty-fifth interrogatory shows that the plaintiff did not examine the brake at any of the stopping places, and the answer to the twenty-sixth interrogatory is substantially to the same effect. The answer to the twenty-eighth is to the effect that, if the plaintiff had made the examination required of him, the defect could have been readily discovered. The answer to the twenty-ninth interrogatory is, in effect, the same as the answer to the twelfth, and the answers to the thirtieth and thirty-first declare that no report was ever made by the plaintiff of the condition of the brake, until after the accident. The jury, in answer to the thirty-second interrogatory, say that it “is not stated” whether the plaintiff had as much knowledge of the condition of the brake as the defendant. In the thirty-third interrogatory the jury were asked what means the defendant had of knowing that the brake was out of repair, and they answered, “Not given.” The answer to the thirty-fourth interrogatory is that the defendant had no actual knowledge of the brake being out of repair, and the answer to the thirty-fifth interrogatory is to the same effect.

It is necessary to consider some questions of practice presented by the appellant's counsel before entering upon a discussion of the principal questions in the case, inasmuch as those questions of practice relate to the construction of the answers to the interrogatories, and their influence as against the general verdict. It is undoubtedly true, as appellant's counsel assert, that if there is no irreconcilable conflict between the general verdict and the special answers, the former must prevail; and it is likewise true that intendments will not be made in favor of the special answers. It is also true that the answers to the interrogatories cannot control the general verdict if they are contradictory, although the verdict may be in irreconcilable conflict with some of these answers. See authorities cited, Elliott, App. Proc. § 752. It is, however, to be kept in mind that, if the answers to the interrogatories state fully and without material contradiction a fact which clearly defeats a recovery, the judgment must necessarily be against a plaintiff who is compelled to establish such a fact as an essential element of his cause of action. Korrady v. Railway Co., (Ind. Sup.) 29 N. E. Rep. 1069. See authorities cited, Elliott, App. Proc. § 753, note 1. It is proper to say, in this connection, that the appellee's counsel are in error in assuming that the absence from the special answers of facts essential to a recovery justifies the conclusion that the plaintiff failed to prove such facts. This view is founded on a radical error, for the rule is that the general verdict finds all facts in favor of the party for whom it is given, unless the answers affirmatively show that such facts do not exist, or were not proved. Town of Poseyville v. Lewis, 126 Ind. 80, 25 N. E. Rep. 593; Rogers v. Leyden, 127 Ind. 50-59, 26 N. E. Rep. 210. If the facts stated in the answers of the jury show that the fault of the plaintiff proximately contributed to his injury, then there can be no recovery, and the ruling of the trial court was right, even if it be conceded that the defendant was guilty of negligence in not providing the plaintiff with a safe working place and appliances.

To the question of the appellant's contributory fault we first address our discussion. It is settled law that it is an employer's duty to make reasonable rules for the conduct of business, and it is equally settled that an employe who contracts to obey those rules and perform service under them is in fault if he does not do what they require. Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. Rep. 380, and authorities cited. In this instance the employe contracted with express reference to the rules of the company, so that there can be no question as to their operation upon him. If he disobeyed the rules, and his disobedience proximately contributed to the injury, he has no cause of action. The only question, therefore, which fairly admits of debate, is as to whether the fault of the appellant in failing to examine the brake, as it was his duty to do, proximately...