New York, C. & St. L.R. Co. v. Connaughton
| Decision Date | 05 June 1936 |
| Docket Number | 15043. |
| Parties | NEW YORK, C. & ST. L. R. CO. v. CONNAUGHTON. |
| Court | Indiana Appellate Court |
Appeal from Morgan Circuit Court; Chester G. Vernon, Judge.
Action by Thomas E. Connaughton against the New York, Chicago & St Louis Railroad Company, wherein defendant filed a demurrer. From a judgment for plaintiff, the defendant appeals.
Reversed with instructions.
Superseding opinion in 198 N.E. 469.
Harker & Irwin, of Frankfort, John C. McNutt, of Martinsville, and Wm. J. Stevenson, of Cleveland, Ohio, for appellant.
Max M Plesser, of Indianapolis, Kivett & Kivett, of Martinsville and Henry H. Winkler, of Indianapolis, for appellee.
This was an action by the appellee, by a second amended complaint in two paragraphs, under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51 to 59, inclusive), for damages for personal injuries alleged to have been received by appellee while acting as a brakeman in the service of the appellant upon a train which was engaged in interstate commerce.
The appellee alleged in the first paragraph that the appellant violated its duty to employ competent and skilled help to man the engine, which engine was so equipped that unless such competent and skilled men were employed, an unusual amount of cinders would emit from the engine. The second paragraph proceeded upon the theory that appellee was injured as the proximate result of the negligence of an unskilled fireman employed by the appellant to fire the engine upon which appellee was riding as brakeman.
The appellant demurred to both paragraphs of amended complaint, alleging that neither contained facts sufficient to constitute a good cause of action, and, as memorandum to the first, sets out that since the damage of the risk or defect was one which appellee, in the exercise of ordinary care, should have known that he thereby assumed the risk and had not negatived this in his said first paragraph of complaint. To the second, the memorandum sets out that plaintiff failed to allege that the negligent act alleged to have been committed by the fireman was committed while he was in the course of his employment. Both of these demurrers were overruled, following which a general denial was filed to each paragraph of complaint.
Trial was had by jury which returned a verdict in the sum of $8,000 on which judgment was rendered. Following the overruling of a motion for new trial, this appeal was perfected, assigning as error the ruling of the court as to the demurrers and the overruling of the motion for new trial. The grounds of the motion for new trial were that (1) the verdict is not sustained by sufficient evidence and is contrary to law; (2) the damages assessed were excessive; (3) the court erred in giving instructions numbered 1, 2, and 3 tendered by the appellee; (4) the court erred in giving instructions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 on its own motion; (5) the court erred in overruling appellant's motion to suppress the deposition of a medical expert because it was defective, improper, irrelevant, immaterial, and prejudicial and did not attempt to support any of the allegations of the complaint, and, further, because it was taken at a time when there were three paragraphs of complaint, the third of which charged negligence of the deponent and other physicians, which third paragraph of complaint was later amended; (6) the court erred in overruling appellant's motion to strike out all the deposition, each question and answer separately and severally; and (7) the court erred in admitting the evidence of one Vincent B. Brown.
The evidence shows that the appellee was a brakeman employed by the appellant and that on February 22, 1929, he was on the engine of the train making a run from Fort Wayne, Ind., to Belleview, Ohio; that there were five members of the crew; and that the appellee was the head brakeman. It was the duty of said brakeman to ride in the engine, and it was also his duty to keep a lookout for signals both forward and rear. On this particular day there was a fireman assigned to this engine; that this was his first run as a regular fireman; and that he had made a few trips prior to that time as a student fireman.
Shortly after leaving Fort Wayne, the appellee testified that the fireman was having trouble in firing the engine and that the manner in which the fireman fired and handled the mechanism under his control caused the engine to emit an excessive quantity of cinders; that while looking out of the window a cinder or cinders became lodged in his eye; and that as a result thereof the removal of such eyeball was eventually necessitated.
All the other members of the crew testified that there was no extraordinarily large emission of cinders; that there was no particular trouble in the firing of the locomotive by the fireman; that there were several stops made between Fort Wayne and the time the appellee testified that the cinder became lodged in his eye and after the appellee discovered the alleged incompetency of the fireman. At the conclusion of the run in the Ohio city, appellee made no report of the accident, nor were any members of the crew aware of the fact that a cinder had become lodged in his eye for the reason that he made no comment thereon, nor was his conduct such as to call their attention to it.
After reaching Belleview, he registered at the yard office at 2:15 o'clock p. m. and remained in Belleview until the next morning, at which time he visited one of the company's physicians whose office assistant attended his eye and directed him to return at 1 o'clock p. m. to see the doctor. He returned at that time and the doctor treated his eye. The doctor gave him instructions as to the treatment thereof, which appellee testified that he followed.
On the 24th day of February appellee worked on a relief train and on March 1 he again worked for the appellant, on a westbound train, and upon arriving at Fort Wayne consulted the company's chief surgeon about his eye. The surgeon sent him to an eye specialist and this eye specialist treated him daily from that time on until the 19th day of April when his eyeball was removed.
The appellant contends that the appellee assumed the risk as a matter of law, and that he cannot recover. Further, that there was no evidence introduced to show that the appellee did not assume the risks of the same, but, on the contrary, the undisputed evidence is that the appellee did have knowledge of and did assume these risks.
Section 4 of the Federal Employers' Liability Act (45 U.S.C.A. § 54) reads as follows:
In Seaboard, etc., Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 639, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475, it is held that by the phrase " any statute enacted for the safety of employees," as used in the said section 4, is meant any federal statute, and that the eliminating of the elements of assumption of risk under the circumstances indicated by section 4 " quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action." See, also, Southern R. Co. v. Howerton (1914) 182 Ind. 208, 105 N.E. 1025, 1029, 106 N.E. 369.
The complaint in the case at bar was not based on any violation of the Safety Appliance Act (45 U.S.C.A. §§ 1-10), but rather both paragraphs were limited to allegations of common-law negligence and the case was tried and the jury instructed upon this theory.
In 39 C.J. 733, it is held that the rule that the servant assumes the risk of his employment and of the negligence of his employer, when known,
Therefore, except in instances of violations of federal statutes, enacted for the safety of employees, the common-law rules as to defense of assumption of risk prevail in cases arising under Federal Employers' Liability Act.
The reason for the application of the assumption of risk doctrine in cases arising under the Federal Employers' Liability Act probably lies in the fact that the employment in railroad work and on an engine of a train is dangerous and attended with great risks. The persons who seek employment on an engine are cognizant of this fact, or by the use of the ordinary powers of observation should be aware of these facts, for the locomotive engine is a complex instrumentality or mechanism, and even though it is operated in a reasonable manner, there are many inescapable...
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