Pennsylvania Company v. Whitcomb

• Decision Date: 14 June 1887
• Docket Number: 12,844
• Citation: 12 N.E. 380,111 Ind. 212
• Parties: The Pennsylvania Company v. Whitcomb, Administrator
• Court: Indiana Supreme Court

12 N.E. 380

111 Ind. 212

The Pennsylvania Company v. Whitcomb, Administrator

No. 12,844

Supreme Court of Indiana

June 14, 1887

From the Shelby Circuit Court.

Judgment reversed.

S Stansifer, for appellant.

T. B Adams, L. T. Michener and G. M. Wright, for appellee.

OPINION

Elliott, J.

Millard Spurlin was in the service of the appellant as a brakeman, and was killed while engaged in the line of his duty, in coupling cars.

The complaint of the appellee, who sues as the administrator of Spurlin, alleges, among other things, that, "The defendant carelessly, negligently and contrary to its duty, had in its use and control on said railway at Lewis Creek Station, Shelby county, Indiana, two freight cars which were unsafe and unsuitable in their construction in the manner following, to wit: That through the heavy beam across one of said cars there projected a large iron rod for the distance of, to wit, four inches beyond said beam, and about, to wit, two feet from the draw-bar on said beam, and that on the other of said cars there projected a large cast-iron stirrup or post socket for the distance of, to wit, six inches from the heavy beam across the end of said car, the stirrup or socket being bolted to said beam about, to wit, two feet from the draw-bar thereon; and that said cars were so unsafely and insecurely constructed that when they were being coupled together the said iron bolt and said iron stirrup or socket were almost opposite each other and with no more of space between them than, to wit, three inches. And the plaintiff says that in order to couple said cars together it was necessary for the brakeman performing said duty to go between said car in which was said iron bolt and the other car, and insert the link and bolt at their proper places in the draw-bars, he necessarily standing at the time at such distance from the dead-woods aforesaid as to be between said bolt and said stirrup or socket on the other car. And the plaintiff says that, on the day and at said station, while the freight train on which the said decedent was employed was engaged in switching and moving and shifting freight cars, the said decedent, in the performance of his duty, went between the two cars above described, to couple them together, one of said cars standing still, while the other was being pushed along the track by the engine toward the first named car, the decedent necessarily standing at the time at such a distance from the dead-woods aforesaid as to be between said bolt and the said stirrup or socket on the other car; that while so standing there, engaged in coupling said cars together, the said cars were pushed together by said engine, and the decedent was caught between said bolt and said stirrup or socket, and his body was so crushed, pressed and injured thereby that he died in said county in fifteen minutes thereafter as the result of said injuries occasioned as aforesaid; and that if said cars had been safely, suitably and properly constructed, said injuries and death would not have occurred. The plaintiff also says that said injuries were received without any fault or negligence on the part of said decedent."

The appellant answered in several paragraphs, but we regard the controlling question the same upon all of these paragraphs, for the sufficiency of all of them depends upon what is alleged to be a contract entered into between the appellant and the appellee's intestate. That contract is averred to be evidenced by a circular issued by the appellant and assented to by the intestate. Omitting immaterial and formal parts, the circular and the alleged agreement of the decedent read as follows:

"Coupling cars by hand is dangerous and unnecessary. This work can be as effectually done by the use of a coupling-stick, which will be supplied to employees by yard-masters at Louisville, Jeffersonville, Columbus, Madison and Indianapolis. From this date the company will not assume any liability or pay any expenses incurred by employees on account of injuries received in coupling cars.

"E. W. McKenna, Superintendent.

"I hereby acknowledge the receipt of a copy of the above circular.

M. Spurlin."

It is averred in the answer that during all the time that Spurlin was in the appellant's service a full supply of coupling-sticks was kept with the yard-masters at Louisville, Jeffersonville, Columbus, Madison and Indianapolis, "and that the said Millard Spurlin, although he might and could readily have supplied himself with one of the said coupling-sticks, at any one of said places or from the caboose of said train, where there was a supply, and of which he had knowledge, failed to do so, and attempted to and made said coupling, whereby he was injured as complained of, by hand. It is denied that decedent was in any manner obligated, or that it was his duty, to make said coupling other than by the use of a coupling-stick, and it is averred that had he used one of said coupling-sticks, it would not have been necessary for him to go or stand between said bolt and said stirrup or socket."

It is undoubtedly the duty of the employer to provide the employee with a safe working place and with safe machinery and appliances. The employer is not bound to exercise the highest degree of skill and care in discharging this duty, but he is required to exercise ordinary care and skill. Krueger v. Louisville, etc., R. W. Co., ante, p. 51; Bradbury v. Goodwin, 108 Ind. 286, 9 N.E. 302; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; Baltimore, etc., R. R. Co., v. Rowan, 104 Ind. 88, 3 N.E. 627; Indiana Car Co. v. Parker, 100 Ind. 181, and cases cited.

This duty is one which the law enjoins upon the master, and it is one which can not be so delegated as to relieve him from responsibility. The agent to whom it is entrusted, whatever his rank may be, acts as the master in discharging it. He is in the master's place. Krueger v. Louisville, etc., R. W. Co., supra, and cases cited; Indiana Car Co. v. Parker, supra, and cases cited; Northern Pacific R. R. Co. v. Herbert, 116 U.S. 642 (33 Alb. L. J. 288, 29 L.Ed. 755, 6 S.Ct. 590).

In the case last cited the authorities are reviewed, and the court said: "This duty he can not delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servants can be transferred so as to exonerate him from such liability."

These principles, so confidently relied upon by the appellee, by no means solve the questions presented by these answers. Duties rest upon the employee as well as upon the employer. Obligations are imposed upon the one by law as well as upon the other. One of the obligations imposed upon one who enters another's employment is, that he shall assume the risks and dangers incident to that employment which are known to him, or which by the exercise of reasonable care he might have known. No one is bound to remain in a service which he is informed is dangerous, and if an employee does voluntarily continue in the master's service after notice of its dangers he assumes all risks arising from the known dangers. Umback v. Lake Shore, etc., R. W. Co., 83 Ind. 191; Louisville, etc., R. R. Co. v. Orr, 84 Ind. 50; Bradbury v. Goodwin, supra; Lake Shore, etc., R. W. Co. v. Stupak, 108 Ind. 1, 8 N.E. 630; Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75, 10 N.E. 631; Hatt v. Nay, 144 Mass. 186, 10 N.E. 807.

The risks which the employee assumes are, however, such as are incident to his service, and such as arise in cases where ordinarily safe machinery and appliances are provided. If machinery of an unusual and more dangerous character is provided, and the employee has no notice of the danger, then he does not assume the risk attendant upon its use. Baltimore, etc., R. R. Co. v. Rowan, supra.

If the deceased continued in the master's service after the danger of coupling cars was made known to him as incidental to his service, he voluntarily assumed the risk, and it is very doubtful whether the complaint is good. This we say because it does not aver that the cars were not ordinary ones and the danger from coupling them an unusual one. But as no assault is made upon the complaint, we do not pass upon its sufficiency. It is necessary, however, to speak of the character of the complaint, for the question is, whether the answer is good to the complaint as drawn, and not whether it would be good in any case. It is difficult, we may further add, to perceive how this action can be maintained without showing that the danger was not incident to the service, or the cars of an unusual kind, but on this phase of the subject we express no direct opinion.

The circular warns the employees that the coupling of all cars by hand is dangerous. Its warning is not confined to cars of a particular class, but it extends to all kinds and all classes. Nor is it simply a warning notice. It is much more. It is a warning and a direction. It instructs all employees to couple all cars with a coupling-stick, and forbids the coupling by hand. This is its legal meaning and effect. By clear and necessary implication, it forbids the coupling of cars by hand and commands that it be always done by the instruments provided for that purpose. We very much doubt whether an employee who remains in service after such a warning, and who disobeys the instructions received from his employer, can recover without, at least, affirmatively showing that obedience would have caused greater danger than disobedience, or that obedience was not practicable under the circumstances of the particular case. Buzzell v. Laconia Man'f'g Co., 48 Me. 113; Frazier v. Pennsylvania R. R. Co., 38 Pa. 104; Mad River, etc., R. R....