New York Cent. R. Co. v. Verpleatse
| Decision Date | 20 March 1945 |
| Docket Number | 17290. |
| Citation | 59 N.E.2d 916,116 Ind.App. 1 |
| Parties | NEW YORK CENT. R. CO. v. VERPLEATSE et al. |
| Court | Indiana Appellate Court |
Rehearing Denied May 4, 1945.
Appeal from Clay Circuit Court; John W. Baumunk, Judge.
Action under the Federal Employers' Liability Act § 1 et seq., 45 U.S.C.A.§ 51 et seq., by Theophile Verpleatse against the New York Central Railroad Company and another for personal injuries. From an adverse judgment, named defendant appeals.
Affirmed.
Beasley O'Brien, Lewis & Beasley, of Terre Haute, and Rawley & Stewart, of Brazil (S. W. Baxter and C. P. Stewart, both of Cincinnati, Ohio, of counsel), for appellant.
Bauer & Kincade, of Terre Haute, and Craig & Craig, of Brazil, for appellees.
The appellee, a section hand employed by the appellant, brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., against the appellant and the appellee Cecil Graham, a fellow employee who was the engineer operating the involved engine.
The jury returned a general verdict as follows:
'We, the Jury, find for the plaintiff and against the defendant, New York Central Railroad Company, and assess plaintiff's damages at $25,000.00; and we find for the defendant, Cecil Graham.'
Interrogatories were submitted and answered by the jury as follows:
'Interrogatory No. 1: Did the accident happen about 10 o'clock in the morning of August 24, 1943? Answer: Yes.
'Interrogatory No. 2: Was August 24, 1943, at the time of the accident, a clear, sunshiny day? Answer: Yes.
'Interrogatory No. 3: Was the involved engine immediately before the accident, backing eastwardly from 25th Street on the lead track? Answer: Yes.
'Interrogatory No. 4: Was the involved engine traveling at a speed of approximately one or two miles per hour as it backed from 25th Street east toward the place of the accident? Answer: Yes.
'Interrogatory No. 5: After passing 25th Street, was there anything to obstruct plaintiff's view of the involved engine as it was backing toward the place of the accident? Answer: No.
'Interrogatory No. 6: Was the whistle on the engine sounded as it approached and entered upon 25th Street? Answer: Yes as it approached but not as it entered 25th Street.
'Interrogatory No. 7: Was the bell on the engine ringing as it approached and passed over 25th Street and up to the time of the accident? Answer: Yes as it passed over but not at time of accident.
'Interrogatory No. 8: Did plaintiff see the involved engine before the accident? Answer: Yes but west of 25th Street.
'Interrogatory No. 9: If you answer the foregoing interrogatory in the affirmative, did plaintiff see the involved engine approximately two car lengths west of 25th Street? Answer: Yes.
'Interrogatory No. 10: If plaintiff saw the involved engine before the accident, was said engine backing in an easterly direction? Answer: No.
Appellant's motion for new trial was overruled and that ruling is the only error assigned.
The allegations of negligence as found in the complaint upon which the case finally went to trial are as follows:
'Plaintiff says that the injuries were the direct and proximate results of each and all of the following acts of negligence and carelessness of the defendants, to-wit:
'(1) That the defendant, New York Central Railroad Company, ordered and directed plaintiff to work along its right-of-way and rails of its switch aforesaid, and carelessly and negligently failed and omitted to provide any safeguards whatever to protect this plaintiff while at work as aforesaid, from its locomotive being operated over the switch. * * *
'(4) That the defendants knew that this plaintiff was at work on the track where he was injured and with such knowledge negligently backed said locomotive at, against and over him without keeping any lookout whatever for him upon said track.
'(5) That the defendants knew plaintiff was at work near said track where he was injured, and with such knowledge negligently backed said locomotive at, against and over him without giving any warning or notice whatever of the approach of said train.
'(6) That the section foreman in charge of the plaintiff wholly failed to give any attention to the safety of this plaintiff while he was at work upon the tracks of the defendant, New York Central Railroad Company, to protect him from approaching trains.'
The appellant first asserts that all the specifications of negligence involve a charge of negligence against the engineer who was exonerated by the verdict, and consequently the exoneration of the codefendant servant must be held to exonerate the master in this case. The rule sought to be invoked applies in cases where the negligence of the master necessarily depends upon the negligence of the servant. It does not apply where negligence of the master himself, or of other servants not exonerated, is charged and proven. Inter State Motor Freight System v. Henry, 1942, 111 Ind.App. 179, 38 N.E.2d 909. The sixth specification clearly charges the appellant with negligence in no way involving the conduct of the engineer, and since, in our opinion, under the law and the evidence introduced to support that specification of negligence the judgment must be affirmed, the others will not be further noticed.
The case was tried and the jury instructed upon the theory that the appellee Graham could be held liable in this case, although both parties now concede in their briefs that he could not be, because the Act applies only to railroads engaged in interstate commerce and not to individuals. See Lee v. Central of Georgia Ry. Co., etc., 1917, 147 Ga. 428, 94 S.E. 558, 13 A.L.R. 156. Under the circumstances we have considered appellant's first contention only in the light of the theory upon which the case was tried.
The appellee introduced in evidence Rule 4033 of the appellant company which reads as follows:
The appellant introduced Rules 4007 and 4032, which read as follows:
These rules were in full force and effect at the time of the accident.
The appellant insists that Rule 4033, if a safety rule at all, was not one promulgated for the safety of employees; that it has no application to this case and the verdict against it cannot be predicated thereon. In this we cannot agree. It was the duty of appellant to adopt and promulgate reasonable rules for the safety of its employees. Evansville & Terre Haute Railroad Company v. Holcomb, 1894, 9 Ind.App. 198, 36 N.E. 39; Chesapeake & Ohio R. Co. v. Russo, Adm'r, 1930, 91 Ind.App. 648, 163 N.E. 283; Louisville, etc., R. W. Co. v. Heck, Adm'r, 1898, 151 Ind. 292, 50 N.E. 988. And the men have a right to rely upon the reasonable enforcement of such rules. Kurn v. Stanfield, 8 Cir., 1940, 111 F.2d 469. Rule 4033 appears in appellant's book of safety rules, in which book the second rule appearing states: 'The rules contained herein are issued for the purpose of insuring greater personal protection to passengers, employees and the public.' These rules were available to the men and were read to them at each safety meeting and they were filed with the Public Service Commission of Indiana.
Appellant specifically contends, however, that Rule 4033 was promulgated only for the interest, welfare and safety of the public and the shippers of goods, and not for the safety of employees, including appellee as a section hand. This rule may have been promulgated with reference to the interests, welfare and safety of the public and the shippers of goods as contended by the appellant, but if so, it was certainly promulgated also with reference to the safety of employees, for it plainly requires foremen to give such careful attention to their men as is necessary to see that the work is done with safety. It is our opinion that the word 'safety' in this rule refers to the safety of men, including the men doing the work about the tracks, and the work 'efficiency' refers to the performance of the work, and any construction excluding that idea would be a strained one. The construction of such rules is for the court, Cleveland, etc., R. Co. v. Bergschicker, 1904, 162 Ind. 108, 69 N.E. 1000, and in this case it was in our opinion rightly construed by the trial court to be a rule promulgated for the safety of employees. The rules in question being, as they were, within the issuable facts in this case, it was proper to introduce them in evidence for or against the company, Baltimore, etc., R. Co. v. Roberts, 1903, 161 Ind. 1, 67 N.E. 530, and the appellant itself introduced two of them.
Nor is the rule as so construed inconsistent with the others, as claimed by the appellant. Rules 4007 and 4032 require care on the part of the men. Rule 4033 requires care on the part of the foremen. In substance and taken together they require the men to use care for their own safety and not to rely entirely upon a warning from the foreman and they require the foreman to use care for those under his charge and direction, and not to rely...
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