Pennsylvania R. Co. v. O'Shaughnessy

• Decision Date: 31 January 1890
• Citation: 23 N.E. 675,122 Ind. 588
• Parties: Pennsylvania R. Co. v. O'Shaughnessy.
• Court: Indiana Supreme Court

122 Ind. 588

23 N.E. 675

Pennsylvania R. Co.

v.O'Shaughnessy.¹

Supreme Court of Indiana.

Jan. 31, 1890.

Appeal from superior court, Allen county; S. M. Hurch, Judge.Brackenridge & Carey, for appellant. Bell & Morris and L. M. Ninde, for appellee.

Elliott, J.

The appellee seeks a recovery against the appellant for wrongfully causing the death of his intestate, Albert O'Shaughnessy. It is unnecessary to do more than outline the allegations of the complaint respecting the negligence of the appellant, as the single objection urged against it is that it shows that the intestate was guilty of such contributory negligence as bars a recovery. Shortly stated, the allegations of the complaint concerning the negligence of the appellant are that it knowingly employed, and knowingly kept in its employ, an incompetent employe; that this incompetent employe negligently ran a train upon the intestate while he was engaged in the line of his duty as a brakeman; that this incompetent employe ran the train in disregard of the established rules of the company, and in a mode, and at a rate of speed, forbidden by the ordinances of the city of Fort Wayne. The specific allegations of the complaint, in so far as they bear upon the question of contributory negligence, are in substance these: The intestate was directed by his superior to assist in making up a train in the appellant's yard. Pursuant to this order, and as a part of his duty, he was proceeding carefully and diligently along the track to a switch to which it was his duty to go. The incompetent employe in charge of the train caused it to be run at the speed of 40 miles an hour, and gave no signals or warnings of any kind. The intestate, while passing along the track to the switch to which he was directed to go, was run over by the train, and killed.

The complaint contains the general averment that there was no fault or negligence whatever on the part of the intestate. As the complaint contains the general averment that the intestate was without contributory fault, it is sufficiently strong to repel the attack made upon it unless the specific allegations clearly show that the intestate was guilty of contributory negligence. It has long been the rule in this court that the general averment makes the complaint good unless its force is clearly broken by the specific allegations of the pleading. Railroad Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234, and cases cited; Railroad Co. v. Crist, 116 Ind. 446, 19 N. E. Rep. 310; Railroad Co. v. Sandford, 117 Ind. 265, 19 N. E. Rep. 770. The specific averments in the complaint before us do not overthrow the general averment that the intestate was without fault. These specific allegations do not establish the fact, as counsel assume, that he was wrongfully on the track. So far are they from doing this that they in truth strongly fortify the general averment, by showing that he was where it was his duty to be, and where he was ordered to be by those placed over him by the master. An employe who does what he is ordered to do is not at fault, but is protected, to a reasonable extent, by the order, while engaged in performing the special duty enjoined upon him. Taylor v. Railroad Co., 22 N. E. Rep. 876, (Nov. 21, 1889;) Railroad Co. v. Lang, 118 Ind. 579, 21 N. E. Rep. 317; Coombs v. Cordage Co., 102 Mass. 572;Goodfellow v. Railroad Co., 106 Mass. 461;Haley v. Case, 142 Mass. 316, 7 N. E. Rep. 877; Crowley v. Railroad Co., 65 Iowa, 658, 20 N. W. Rep. 467, 22 N. W. Rep. 918;Abel v. Canal Co., 103 N. Y. 581, 9 N. E. Rep. 325; Reagan v. Railroad Co., 93 Mo. 348, 6 S. W. Rep. 371;Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. Rep. 514. But, if the intestate had not been acting under a special order, he was nevertheless entitled to assume that ordinary care would be exercised for his safety; for he was, as the complaint shows, where his general duty required him to be, and of this the master was bound to have knowledge; and this knowledge imposed upon it the general obligation to exercise reasonable care to prevent his exposure to extraordinary peril. Railroad Co. v Long, 112 Ind. 166, 13N. E. Rep. 659; Goodfellow v. Railroad Co., 106 Mass. 461;Quirk v. Holt, 99 Mass. 164;Mark v. Railroad Co., 32 Minn. 208, 20 N. W. Rep. 131. It is, of course, incumbent upon an employe, whether acting under orders or not, engaged in the line of his duty, to use ordinary care to avoid injury; but he is not to be deemed negligent while so acting from the mere fact that he remains upon the track, or passes along it. It is sufficiently evident from what we have said that the intestate was not a trespasser, and that such cases as Railroad Co. v. Griffin, 100 Ind. 221, and Mulherrin v. Railroad Co., 81 Pa. St. 366, are wholly irrelevant to the point in issue. To give force to those decisions, the facts must be such as to show that the railroad company was not under any duty to the person injured by the negligence of its employes. This cannot be true of an employe engaged in the line of his duty, and acting under a special order from his superior.

The answers of the jury to the special interrogatories propounded to them by the plaintiff show that the intestate was in the appellant's service as a brakeman at the time...