Pittsburgh, C., C. & St. L. Ry. Co. v. Ross

Citation169 Ind. 3,80 N.E. 845
Decision Date05 April 1907
Docket NumberNo. 20,832.,20,832.
CourtSupreme Court of Indiana
PartiesPITTSBURGH, C., C. & ST. L. RY. CO. v. ROSS.

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Cass County; Jno. S. Lairy, Judge.

Action by William R. Ross against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company From a judgment for plaintiff, defendant appeals. Affirmed.G. E. Ross, for appellant. Kistler & Kistler and McConnell, Jenkines, Jenkines & Stuart, for appellee.

MONTGOMERY, C. J.

This action was brought by appellee to recover damages for a personal injury received while in appellant's employ. The appeal was taken directly to this court upon the claim that a constitutional question is involved and presented by the record for decision. The action is founded upon the employer's liability statute (section 7083, Burns' Ann. St. 1901). The validity of this act, in so far as it applies to railroads, was upheld in the case of Pittsburgh, etc., Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 301, and that holding has been twice reaffirmed since this appeal was filed, in response to contentions of this appellant, and the constitutionality of the law must be regarded as settled. Pittsburgh, etc., Co. v. Lightheiser (Ind. Sup.) 78 N. E. 1033;Pittsburgh, etc., Co. v. Collins (Ind. Sup.) 80 N. E. 415.

The complaint consisted of three paragraphs. The first paragraph, as amended, was full and specific in essential allegations, and it is not deemed necessary to set out in this opinion more than the substance of such averments as contain the gist of the action. Appellee, at the time of the accident, was in appellant's employ as a brakeman or yard switchman in its yards at Logansport, as one of a “crew” engaged in making up and separating trains, switching, coupling, and uncoupling cars, setting and releasing brakes, and in doing such other work as the conductor of said crew might direct. George Early was conductor, and had charge of said crew, and was vested with authority from appellant to order and direct appellee and the other members of the crew in the performance of their work, and each member of the crew was bound to obey and conform to his orders. A number of cars were upon track No. 1 of the old yard, two of which were uncoupled and standing two or three feet apart. Conductor Early directed appellee to ride a certain car, then being kicked or shoved down upon track No. 3, and then to go across to track No. 1 and make ready for them to shove the cars thereon, meaning for him to adjust all couplers, and couple cars standing on said track preparatory to shoving such cars. It was necessary for appellee to adjust the couplers on the two cars standing apart with his hands, so that when shoved they would couple automatically. In obedience to such order of Early's, he went between said cars, and proceeded to adjust the couplers, using due care. It was usual, customary, and proper in such circumstances that the conductor should not disturb such cars or cause them to be moved, without notifying appellee of his intention so to do, or until he had received notice from appellee of his readiness to have the cars moved, as said conductor well knew. The conductor, Early, in disregard of his duty, and without notice from appellee of his readiness or warning to him, carelessly and negligently signaled and ordered the engineer in charge of a locomotive to run the same with a train of cars in and upon said track No. 1 and against the cars standing thereon, which said engineer did, and thereby quickly shoved said cars together and caught appellee's left hand beween the couplers and so injured the same as to necessitate amputation. The second paragraph of complaint was like the first, except that the order of the conductor was alleged to be more specific; it being averred that he ordered appellee “to go between the cars standing apart on track No. 1 of the old yard *** and to adjust the couplers thereof and couple the same.” The third paragraph alleged that George Early was in appellant's employ as conductor, and had charge and control of a train in its yards, and that appellee was injured through the negligence of said conductor in causing said train of cars to be run without notice or warning to appellee against the cars which he was engaged in coupling. Appellant's motion to make each of said paragraphs more specific, and demurrers to each, on the ground of insufficiency of facts, were overruled. Appellee's demurrer was sustained to two affirmative paragraphs of answer, alleging that by the terms of a written contract of employment appellee assumed the risk of injury from the negligence of any one in appellant's employ having charge of a train upon the company's railroad or in its yards. A trial upon said three paragraphs of complaint and an answer of general denial resulted in a verdict for appellee. Motions in arrest, and for a new trial, were overruled, and judgment was rendered in accordance with the verdict.

The assignment of errors challenges the correctness of the court's decisions in overruling appellant's several motions and demurrers, and in sustaining appellee's demurrer to the second and third paragraphs of answer. Appellant sought to have each paragraph of amended complaint made more specific with respect to the allegations concerning appellee's duties, the conductor's duties and obligations to appellee, and the facts constituting his alleged carelessness and negligence. In appellant's brief, under the head of “Points and Authorities,” it is asserted that “the defendant is entitled to have the facts which the plaintiff relies upon as constituting the negligence causing the injury for which he asks damages stated positively and specifically in the complaint.” Many cases are cited in support of this general proposition. In the recent case of Pittsburgh, etc., Co. v. Lightheiser (Ind. Sup.) 78 N. E. 1033, 1040, this court, in speaking of general objections to instructions, said: “While a discussion or elaboration of a point is not proper in the statement of points, mere general statements, without specific and definite reasons specifically applied, present no question for decision.” The rule so announced concerning objections to instructions cannot be applied in its full strictness in the present instance, since the motion to make more specific to some extent indicates the alleged uncertainty of the pleading. But appellant's brief should in every case point specifically to the defects of which complaint is made. Appellant's counsel has not directed our attention to any omitted averment, nor shown how any paragraph of the amended complaint could reasonably have been made more specific upon the subjects indicated, how appellant's interests or rights would have been subserved by more specific allegations, or in what respect appellant was or might have been injured by the court's rulings upon the motions to make more specific. We do not feel called upon to review the pleadings in detail, but, dealing with them in the general way adopted by appellant's counsel, hold that each paragraph of amended complaint fully meets the requirements of good pleading, and the several motions to make the same more specific were properly overruled.

The allegations of the first and second paragraphs of amended complaint charged that appellant was a railroad corporation operating in this state, and that appellee was in its employ, and while in its service and in the exercise of due care and diligence was injured through the specified negligence of George Early, a conductor in appellant's service, to whose order and direction appellee at the time of receiving his injury was bound to conform, and was conforming. It is argued that a recovery can be had, under the second subdivision of the employer's liability statute (section 7083, Burns' Ann. St. 1901), by an injured employé for an injury received while conforming to some special order or direction only, and that the order or direction set out in the first paragraph of amended complaint is not special, but general. It is averred that appellee was directed to make ready to shove the cars on track No. 1, thereby “meaning for him to adjust all couplers and couple cars standing on said track, as was usual, proper, and customary to be done under such order and direction.” It is thus shown that the order had a definite meaning, requiring appellee to do a particular work in the present and the immediate future under the supervision of the superior servant; and it is further alleged that he was executing it in the way that was usual and necessary. The conductor determinedthe time, place, and circumstances in which the work specially assigned should be done. Confident and unhesitating obedience on the part of subordinates is essential to the proper performance of hazardous work. If obedience is exacted, it is both politic and just that the obeying servant, while conforming to orders and in the exercise of due care, should be guarantied indemnity for injuries suffered through the negligence of the commanding servant. The allegations of this paragraph of complaint show that, while appellee was engaged in the performance of the work which he was specially directed to do, he was injured by the negligence of the conductor, whose order he was obeying. He had not completed his task, and, so long as he was occupied with the duty so expressly assigned, the conductor was chargeable with knowledge of his situation, and was under obligation to avoid injuring his person. It is our conclusion that the order under which appellee was working, as pleaded in the first paragraph of complaint, was not general, but special, within the meaning of this act. The order declared upon in the second paragraph was still more specific, and in our opinion a cause of action under subdivision 2 of section 7083, Burns' Ann. St. 1901, is stated in both the first and second paragraphs of amended complaint....

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10 cases
  • Richey v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company
    • United States
    • Supreme Court of Indiana
    • November 28, 1911
    ...... employer, so as to avoid the constitutional objection, this. court in the case of Pittsburgh, etc., R. Co. v. Montgomery (1898). 152 Ind. 1, 69 L. R. A. 875, 71. Am. St. 300, 49 N.E. 582, followed the rule in Iowa,. Minnesota and Kansas ...438, 78 N.E. 1033,. Pittsburgh, etc., R. Co. v. Collins (1907),. 168 Ind. 467, 80 N.E. 415, and Pittsburgh, etc., R. Co. v. Ross (1907), 169 Ind. 3, 80 N.E. 845, in. each of which the question under our Constitution was. directly involved. See Pittsburg, etc., R. Co. v. ......
  • Richey v. Cleveland, C., C. & St. L. R. Co.
    • United States
    • Supreme Court of Indiana
    • November 28, 1911
    ......, by basing it upon the character of the employment, and not of the employer, so as to avoid the constitutional objection, this court, in Pittsburgh, etc., Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 301, followed the rule in Iowa, Minnesota, and Kansas, of ...v. Lightheiser, 168 Ind. 438, 78 N. E. 1033, and Pittsburgh, etc., Co. v. Collins, 168 Ind. 467, 80 N. E. 415, and Pittsburgh, etc., Co. v. Ross, 169 Ind. 3, 80 N. E. 845, in each of which the question under our Constitution was directly involved.         If, as seems to be the case, ......
  • Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Peck
    • United States
    • Court of Appeals of Indiana
    • June 4, 1909
    ......316). Transferred to Appellate Court (see 172 Ind. 19). Retransferred to Supreme Court. (Retransferred to Appellate. Court [see 172 Ind. 562]. Retransferred to the Supreme Court. [see 45 Ind.App. -- ]. Dismissed on motion of appellee.). . .          George. E. Ross, for appellant. . .          Kistler. & Kistler, for appellee. . .          . OPINION. . .           [44. Ind.App. 63] PER CURIAM. . .           This. cause was tried by a jury upon the issues presented by the. fourth and fifth paragraphs of the ......
  • Pittsburg, C., C. & St. L. Ry. Co. v. Peck
    • United States
    • Court of Appeals of Indiana
    • June 4, 1909
    ...R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033;Pittsburg, etc., Ry. Co. v. Collins, 168 Ind. 467, 80 N. E. 415;Pittsburg, etc., Ry. Co. v. Ross, 169 Ind. 3, 80 N. E. 845. In each of these cases the same constitutional question was presented in about the same form and language as in this......
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