Pittsburg, C., C. & St. L. Ry. Co. v. Montgomery

Decision Date19 February 1898
Citation49 N.E. 582,152 Ind. 1
CourtIndiana Supreme Court


Appeal from circuit court, Cass county; M. B. Lairy, Judge.

Action by William J. Montgomery against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.N. O. Ross, Geo. W. Funk, D. H. Chase, and Geo. E. Ross, for appellant. McConnell & Jenkins and Nelson & Myers, for appellee.


This action was brought by the appellee against the appellant to recover damages suffered by him on account of the alleged negligence of the defendant, resulting in a personal injury to the plaintiff. A demurrer to the complaint for want of sufficient facts, and a demurrer to the second paragraph of the answer, were overruled, and the issues joined were tried by a jury, resulting in a special verdict and judgment, over defendant's motion for a new trial, for $3,000 damages. The errors assigned call in question the rulings on demurrer, the refusal of a new trial, overruling motions for a venire de novo, for judgment in appellant's favor on the special verdict, and sustaining appellee's motion for judgment on the special verdict in his favor.

The only objection urged to the complaint is that it shows that the plaintiff was a freight brakeman in the defendant's service on its railroad, and that it was the negligence of the engineer of the train on which he was serving that caused his injury, and that, under the fellow-servant rule, there was no liability. The injury occurred on July 1, 1893, after the act approved March 4, 1893, took effect, touching the liability of railroads, commonly called the “Employers' Liability Act.” Acts 1893, p. 294; Rev. St. 1894, §§ 7083-7087 (Horner's Rev. St. 1897, §§ 5206-5206v).

Appellant's learned counsel contend that it is settled law that the employer is not liable to an employé for injuries caused by the negligence of a co-employé in the same general service. unless the employer was guilty of some negligence in employing the servant, with knowledge of his negligent habits or incompetency, or retained him after knowledge of such negligence or lack of skill. There is no showing of any such negligence on the part of the appellant, as employer, in the complaint. Appellee concedesthis to be the common-law rule, and that it prevailed in this state prior to the enactment above mentioned. Indeed, it is conceded by the appellee that his complaint depends upon that act for its sufficiency in its facts to constitute a cause of action, and is founded thereon.

It is first contended by the appellant that the act does not change the common-law rule, and it would seem to follow, if that is true, that the complaint is clearly bad. The first section provides: “That every railroad or other corporation, except municipal, operating in this state shall be liable in damages for personal injury suffered by any employé while in its service, the employé so injured being in the exercise of due care and diligence, in the following cases.” Then follow four subdivisions, specifying the cases in which liability is to attach, the fourth of which, and the one on which this action is founded, reads thus: “Where such injury was caused by the negligence of any person in the service of such corporation, who has charge of any signal, telegraph office, switch yard, shop, round-house, locomotive engine, or train upon a railway, or where such injury was caused by the negligence of any person, co-employé, or fellow servant engaged in the same common service in any of the several departments of the service of any such corporation, the said person co-employé, or fellow servant, at the time acting in the place, and performing the duty of the corporation in that behalf, and the person so injured, obeying or conforming to the order of some superior at the time of such injury, having authority to direct; but nothing herein shall be construed to abridge the liability of the corporation under existing laws.” Appellant's learned counsel say: “The complaint lacks two allegations to make it good under this provision. (1) That the engineer at the time was acting in the place and performing the duty of the corporation in that behalf; and (2) that appellee was obeying or conforming to the order of some superior at the time of such injury, having authority to direct. It was not alleged that the engineer was acting in the place or performing the duty of the master, or that appellee was acting in obedience to a superior,” etc.

This language, together with other parts of appellant's brief, indicates that appellant's learned counsel construe the language of the statute above quoted as conveying the meaning that the right to recover against an employer for the negligence of a co-employé or fellow servant rests upon the condition that such negligent co-employé was at the time acting in the place and performing the duty that the master or employer owed to his or its servants or employés generally, and yet they do not say so in so many words. The majority of the court are of the opinion that the decision of that question is not necessary to the decision of this case. They hold that the only part of the fourth subdivision of said section which is necessary to be considered in determining the sufficiency of the complaint is the following: “Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any * * * locomotive engine upon a railway, * * * and the person so injured, obeying or conforming to the order of some superior at the time of such injury, having authority to direct;” and that hence it was not necessary that the complaint should state that the alleged negligent engineer, at the time he committed the alleged negligent injury, as provided in such concluding clause, was acting in the place and performing the duty of the corporation in that behalf, while the writer hereof is of the opinion that the whole of the fourth subdivision must stand together, and that the words quoted from the concluding clause qualify the liability created in the first clause or clauses. But the duty of the corporation therein mentioned, in the opinion of the writer, means, not the duty it owes to its servants, but the duty it owes to the public in carrying on its business; and the words, “acting in the place of such corporation,” with the other words quoted, were used to convey the idea that, in order that the liability mentioned should exist, the negligent person, co-employé, or fellow servant must be acting as such employé, in the line of his duty, at the time of his negligence. The writer is of opinion that the complaint is good under this construction; and the holding of the court is that, in order to make the complaint good under the first part of the subdivision quoted, as to the point in question, it is only required that it state that the engineer, while in the service of appellant, in charge of a locomotive engine, negligently injured the appellee, both being at the time acting in the line of duty as employés of the appellant. That being so, the averments of the complaint, showing, as they do, that at Hartford City, Ind., the freight train upon which appellee was brakeman stopped to switch out loaded cars; that the conductor of said train, acting in the service of appellant, the authority and position of said conductor making it appellee's duty to obey his orders in respect to said train and switching, ordered appellee to go between said cars to make couplings, and while so engaged the engineer in charge of said train, also in appellant's service, and in the line of his duty, without signal, carelessly, negligently, and recklessly reversed said engine and applied full steam, whereupon said cars were driven and jammed together with terrific force, without notice to appellee, whereby appellee's entire right hand was caught between the bumpers and mashed off, without any fault on his part,-make the complaint sufficient, under the statute, as to the objection thereto urged.

The next contention against the sufficiency of the complaint is that the act is unconstitutional, that being confessedly the foundation of the action. It is first contended that it violates section 19 of article 4 of the state constitution, which provides that “every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title.” It is contended that the subject is not expressed in the title, in that the title is “An act regulating liability of railroads and other corporations except municipal,” while the provisions of the act itself are, as claimed by appellant, to create a liability which up to that time had no existence. The precise question here involved was decided adversely to appellant's contention, on a statute similar to our own, under a constitution an exact copy of our own in this respect, in McAunich v. Railroad Co., 20 Iowa, 338. We feel content to follow that case, without extending this opinion by repeating its reasoning, and, accordingly, hold that the subject is sufficiently expressed in the title.

The same rule has been, in effect, followed by this court in holding that the title of an act need not go into details. It is sufficient if it indicates with reasonable precision and clearness the subject it embraces. Nor is an act invalid because it includes details not mentioned in the title, provided the details are germane to the general subject designated in the title. Bitters v. Board, 81 Ind. 125;Turnpike Co. v. Fletcher (Ind. Sup.) 2 N. E. 243;Benson v. Christian, 129 Ind. 535, 29 N. E. 26;State v. Kolsem, 130 Ind. 434, 29 N. E. 595;State v. Roby, 142 Ind. 168, 41 N. E. 145;Lewis v. State (Ind. Sup.) 47 N. E. 675.

In the course of some of the briefs filed in other cases involving the validity of the act, it is contended that the act is void, in that it violates ...

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