New York, C. & St. L.R. Co. v. Allen
| Decision Date | 09 June 1916 |
| Docket Number | No. 9048.,9048. |
| Court | Indiana Appellate Court |
| Parties | NEW YORK, C. & ST. L. R. CO. v. ALLEN. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Allen County; John W. Eggeman, Judge.
Action by Robert Allen against the New York, Chicago & St. Louis Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.Walter Olds, of Ft. Wayne, for appellant. McAdams & Hartzell, of Ft. Wayne, for appellee.
The complaint in this case charges substantially the following: Appellee on May 15, 1913, was working for appellant on its railroad under the direction of one of its foremen. He was directed by such foreman to assist in spiking rails to ties on the roadbed. The foreman directed the men engaged in that service to work in two gangs. The first gang or section was to spike every third tie, and the second section was to follow and spike every third tie. The foreman placed in charge of the first section an Italian laborer who did not understand the work and was awkward and careless in the performance of his work, and appellee was working next to him.
“Said laborer stepped back, and, while in the act of swinging a sledge hammer, swung such hammer in such a manner and carelessly and negligently struck the plaintiff in the eye, severely injuring him, *** and said injury was without any negligence on the part of this plaintiff and wholly from the fault and negligence in placing an unskilled laborer to work upon said road, and that by reason thereof plaintiff has been damaged in the sum of $5,000.”
There was judgment for appellee on the verdict of the jury for $222.50. One of the alleged errors is the overruling of appellant's motion for a new trial, one ground of which is that the verdict is not sustained by sufficient evidence.
[1] It is apparent, we think, that the action is brought upon the theory that appellant was negligent in the employment of an incompetent servant, and in requiring appellee to work in close proximity to him, and that appellee's injury was due to the incompetency of such coemployé, and the record discloses that the trial court and appellee proceeded during the trial upon this theory. While it is apparent, also, that appellee's complaint seeks to count upon the Employer's Liability Act of March 2, 1911 (Acts 1911, p. 145), one section of which removes the assumption of the risk “where the injury complained of resulted from the employé's obedience” to an order or direction of the employer or of any employé to whose order or direction he was under obligation to conform or obey, still the burden rests upon the injured person in the first instance to sustain the specific acts of negligence charged before the above statute can be invoked.
[2] There is no rule of law better settled than that the plaintiff can only recover on the theory of the complaint, and that the burden is on him to support such theory by some competent testimony. Consequently, in this case it was incumbent on appellee to show that the accident happened in consequence of the incompetency of the fellow servant. Therefore the first question is whether the evidence supports appellee's theory.
[3] The undisputed evidence shows that appellant's servants were, at the time appellee received his injury, engaged in laying ties and spiking rails thereon. They had laid a portion of the track in the forenoon of that day and had temporarily spiked it so that trains might safely run over it, and they had permanently spiked the north rail, and the foreman had set two gangs, consisting of three men each, to spiking the south rail. They used a gauge to obtain the correct distance between the rails. That was moved forward as the work progressed by the spiker working between the rails. In each of these gangs there was a man called a “nipper,” who worked a little in advance of the spikers and who carried the spikes, and used a crowbar to pry the ties up to the rails, and then the spikers on each side of the rail drove the spikes, at the same time drawing the rail in position. Each man understood...
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