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

• Decision Date: 23 December 1914
• Docket Number: No. 8322.,8322.
• Citation: 107 N.E. 315,57 Ind.App. 431
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. HOFFMAN.

57 Ind.App. 431

107 N.E. 315

PITTSBURGH, C., C. & ST. L. RY. CO.

v.HOFFMAN.

No. 8322.

Appellate Court of Indiana, Division No. 2.

Dec. 23, 1914.

Appeal from Circuit Court, Wayne County; H. C. Fox, Judge.

Action by Otto E. Hoffman against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.Walter G. Butler and John L. Rupe, both of Richmond, for appellant. Shiveley & Shiveley, of Richmond, for appellee.

CALDWELL, P. J.

Trial by jury, verdict for appellee for $5,000, from which $1,500 was remitted, and judgment rendered for the residue. The complaint is in two paragraphs. Error is assigned on the overruling of the demurrer to each. The averments of the first paragraph necessary to determine its sufficiency, against objections urged, are substantially as follows: January 25, 1911, appellant, in the process of double-tracking its railroad, was constructing over Simmons creek west of Dublin a concrete double-arch bridge. The work consisted of such double arches and a cinder fill thereon, and was being performed by an independent contractor. The bridge on its completion was designed to support the existing track on the north and an additional track to be laid on the south. In order that traffic might not be interrupted, the south half of the bridge was built first. On said day the south half of the double arches had been completed, the fill made thereon, and a temporary track about 1,000 feet in length, extending across the south half of the work and joining the existing track at each end, was being used for the passage of trains while the old bridge supporting the existing line of road on the north was being removed, and the north half of said work constructed. In making said fill over the south half of said arches, a crib was constructed by the use of railroad ties to support the north wall of such fill while the north half of said work was being done. On said day the concrete work of said north half was nearing completion. Appellee was employed as a watchman by said independent contractor. His duties as such watchman were that he should remain on and about said bridge during the nighttime, and care for the same, and also that he should look after and keep fire in certain stationary engines, which were being used in constructing said work. It is alleged that said temporary track was crooked, uneven, and not well ballasted. About 5:30 o'clock on the morning of said day, and before the arrival of the force of men engaged in said work, appellant ran a west-bound passenger train over said temporary track at the rate of 40 miles per hour. By reason of said condition of said track, said train did not run smoothly, but swayed and rocked. Appellee at the time was in the line and performance of his said duty at a point on the north half of said arches, five to seven feet north of said temporary track, which, by reason of said fill, was seven or eight feet above him, and thereupon, while said train was being carelessly and negligently operated over said uneven track, a large lump of coal fell from the tender of the engine drawing said train, and struck appellee on the head and seriously injured him. It is alleged that appellant was guilty of negligence in loading the coal in said tender, and in operating said train at a high rate of speed over said defective track, and that as a result said lump of coal was thrown from said tender against appellee injuring him, as aforesaid. It is alleged, also, that appellant knew and that appellee did not know of the negligence as pleaded. The second paragraph of complaint does not differ materially from the first. It contains additional matter that there was in force a general rule and order made by appellant that trains should not be operated over said temporary track at a speed exceeding 15 miles per hour. Against the sufficiency of the first paragraph of complaint, it is argued that such paragraph does not disclose that appellee's duties required him to be on the incompleted bridge; that it does disclose that he was there for purposes of his own; that, as a consequence, it does not appear that appellant owed appellee any duty to exercise care respecting him. It is argued also that the accident and injury resulted from dangers and risks incident to appellee's employment and known to him, which dangers and risks were therefore assumed by him.

[1][2][3] As indicated, it is alleged in said paragraph that appellee was employed as a watchman, and that it was a part of his duty under such employment to be on and about said bridge, and to care for same during the nighttime. It is specifically alleged that appellee received his said injuries while discharging such duties, and it therefore sufficiently appears that appellee's duty rather than some purpose of his own, accounted for his presence. He was therefore rightfully on the bridge. Being rightfully on the bridge, appellant was chargeable with notice of his whereabouts. Jackson v. Galveston, etc., Co., 90 Tex. 372, 38 S. W. 745. Appellee being rightfully near the track, and appellant being chargeable with notice of his presence, because it was chargeable with notice of the presence of all persons who might be rightfully near the track, it follows that appellant owed appellee the duty to use ordinary care to avoid injuring him, and that, if it failed to do so, it was thereby guilty of negligence. Such being the case, the averments contained in said paragraph-that appellant, with knowledge of the facts, negligently loaded the coal by piling it up above the top of the tender, in the absence of safeguards to prevent it from falling, and so that it would fall and be thrown from the tender by the motion of the engine, and that loaded, as aforesaid, appellant negligently ran said engine over said defective track at said high rate of speed-are sufficient as a charge of negligence. Fletcher v. Baltimore, etc., Co., 168 U. S. 135, 18 Sup. Ct. 35, 42 L. Ed. 411;Gulf, etc., Co. v. Wood (Tex. Civ. App.) 63 S. W. 164;Cleveland, etc., Co. v. Berry, 152 Ind. 607, 616, 53 N. E. 415, 46 L. R. A. 33; 33 Cyc. 779.

[4][5] In a case where the principle of assumption of risk applies, the person subjected to such principle is held to assume the risk incident to the enterprise, when properly equipped and conducted, and, in addition, he assumes all risks growing out of defects or dangers of which he has either actual or constructive knowledge, and which he understands and appreciates, although such additional risks have their origin in the negligence of the one who in the particular matter sustains to him the relation of master or other contractual relation. As matter of pleading in negligence cases, a general allegation of plaintiff's want of knowledge respecting the defect and consequent danger complained of is sufficient, unless specific facts disclosed by the complaint overcome such general averment. Such general allegation negatives not only actual but also constructive knowledge. Terre Haute, etc., Co. v. Young, 104 N. E. 780;Diamond, etc., Co. v. Cuthbertson, 166 Ind. 290, 76 N. E. 1060.

[6][7] The negligence charged here in the first paragraph of complaint is respecting the loading of the coal on the tender, and the manner of operating the engine over said defective track. It is averred that appellee had no knowledge of appellant's alleged negligent acts as averred in said paragraph, and, there being no specific facts pleaded which nullify said general allegation, said paragraph is sufficient as against the criticism now under consideration, even if the element of “assumption of risk” were involved in this action. However, what is technically known as the doctrine of the “assumption of risk” has no application to a case such as this. Such doctrine is confined to those negligence cases wherein the relation of master and servant or other contractual relation exists. There was no such relation between appellant and appellee. Indiana Oil Co. v. O'Brien, 160 Ind. 266, 65 N. E. 918, 66 N. E. 742;Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319;Cleveland, etc., Co. v. Gossett, 172 Ind. 525, 539, 87 N. E. 723.

[8][9][10] It may be granted that, in relations other than contractual, there is applied in negligence cases a principle very similar in its nature to the principle of the assumption of risk. Thus, where one voluntarily uses a defective bridge, street, highway, or sidewalk, with actual or constructive knowledge of its condition, and as a consequence of such use suffers an injury, no term of universal application is used to designate the principle involved which in such cases may defeat the right to recover from such injury. The hazard encountered under such circumstances is referred to by the courts as an incurred risk, and sometimes as an assumed risk, while the fact that one so encounters it is sometimes called taking the risk. In all such cases, application of the maxim volenti non fit injuria, “that to which a person consentsis not deemed in law an injury,” may defeat a recovery. City v. Small, 86 Ind. 462, 466;City v. Cook, 99 Ind. 10, 13;Bruker v. Town, etc., 69 Ind. 33, 35 Am. Rep. 202;Town v. Walker, etc., 16 Ind. App. 687, 692, 46 N. E. 90;Town v. Evans, 112 Ind. 133, 13 N. E. 256, 2 Am. St. Rep. 164. Persons being transported on freight and stock cars are also said to assume the risk of so doing. Ohio, etc., Co. v. Watson, 19 L. R. A. 310, note. Or by occupying improper places on street cars. Burns v. Johnstown, etc., Co., 2 L. R. A. (N. S.) 1191, note. Or by alighting from a moving car. Jagger v. People's etc., Co., 180 Pa. 436, 36 Atl. 867, 38 L. R. A. 786, and note. A like term is used to characterize conduct in certain other relations. Wells v. Minnesota, etc., Co., 122 Minn. 327, 142 N. W. 706, 46 L. R. A. (N. S.) 606;Muldoon v. Seattle, etc., Co., 10 Wash. 311, 38 Pac. 995, 22 L. R. A. 794, 45 Am. St. Rep. 787. It will be...