Pittsburgh, Cincinnati, Chicago And St. Louis Railway Company v. Farmers Trust & Savings Company

• Decision Date: 10 March 1915
• Docket Number: 22,323
• Citation: 108 N.E. 108,183 Ind. 287
• Parties: The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Farmers Trust and Savings Company, Administrator
• Court: Indiana Supreme Court

108 N.E. 108

183 Ind. 287

The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Farmers Trust and Savings Company, Administrator

No. 22,323

Supreme Court of Indiana

March 10, 1915

Rehearing Denied June 1, 1915.

From Howard Circuit Court; William C. Purdum, Judge.

Action by the Farmers Trust and Savings Company, administrator against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

George E. Ross, for appellant.

S. L Stricler, J. F. Charles and Harness, Moon & Voorhis, for appellee.

OPINION

Morris, J.

Action by appellee against appellant for damages for personal injuries resulting in death. To the complaint, in two paragraphs, an answer in general denial was filed. Trial by jury, verdict and judgment for appellee for $ 5,000. The question of the constitutionality of the act of Congress, of April 22, 1908, known as the Federal Employer's Liability Act is involved and therefore the jurisdiction of the appeal is in this court. Acts 1907 p. 237, § 1392 Burns 1914. The errors assigned are the overruling of appellant's demurrer to each paragraph of complaint, and its motion for a new trial. The first paragraph of complaint alleges among other things, in substance, that on December 14, 1910, and prior thereto, appellant was a common carrier and owned and operated a double track steam railroad extending through Indiana and other states, and running through the incorporated city of Gas City, Indiana; that in the city, it had, in connection with its railroad, many switches and side tracks in what was called its yards; that numerous manufacturing plants were located along the main and side tracks in the city, and freight, in large quantities, in carload lots, was constantly shipped out and received by said establishments, over appellant's road, destined to and coming from places outside Indiana; that appellee's decedent, William Morrow, was employed by appellant, at Gas City, in the capacity of yard master and yard clerk, and his duties, among other things, required him to direct the setting and movement of freight cars, and to keep a record of the cars shipped to and from the city; that the performance of said duties required decedent to visit the yards daily, and be upon and near the tracks to inspect the cars personally and make a record thereof, all of which he performed; that on the morning of said December 14, decedent was on one of the main tracks at a point which was a short distance south of the intersection of a main track and Main Street, in the city, engaged in the performance of said duties; that Main Street was the principal thoroughfare of the city and much travelled; that Morrow's position at the time was where he was required to be in the performance of the duties of his employment; that while he was performing his duties in said place, a locomotive engine was driven backward, with tender in front, by appellant, from a place east of the city, towards him, at a dangerous rate of speed, to wit, 30 miles per hour, and the same ran over and killed him; that when struck by the locomotive and just prior thereto, he was engaged in the performance of the duties of his employment, and engaged in interstate commerce for appellant; that at and near the place of injury, the situation was such that appellant's employes on the engine could have seen Morrow on the track in time to have stopped the engine before reaching the point where he was struck, had they kept a lookout ahead, but that said employes negligently failed during all the time of the engine's approach to keep any watch of the track ahead, and failed to sound the whistle of the engine or give warning of its approach; that had said employes watched the track ahead, they would have seen Morrow in time to warn him or stop the engine, and would thereby have avoided the accident; that the engine made little noise, and Morrow had no knowledge of its approach; that at and prior to the accident he was facing the direction opposite that of the engine's approach, and was absorbed in the performance of his said duties; that the engine was not running on any schedule, and was destined for Marion, Indiana.

It is manifest that the pleader intended to state a cause of action under the Federal Employer's Liability Act of April 22, 1908. 35 Stat. at Large 65, Chap. 149, U.S. Comp. Stat. Supp. 1909, p. 1171. Counsel for appellant contends that the demurrer to the paragraph should have been sustained for the reason, as claimed, that the act is void because in violation of the 5th and 14th Amendments to the Federal Constitution. The Supreme Court of the United States has held otherwise. Mondou v. New York, etc., R. Co. (1912), 223 U.S. 1, 56 L.Ed. 327, 32 S.Ct. 169, 38 L. R. A. (N. S.) 44. It is further claimed that the facts averred do not show that decedent was employed in interstate commerce when injured. We are of the opinion that appellant is in error in this contention. The complaint alleges that decedent was yard clerk and it was his duty to go into the yards daily and make a record of incoming and outgoing cars and that there was a constant movement there of interstate traffic, and that the injury was received while engaged in such duty. In St. Louis, etc., R. Co. v. Seale (1913), 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann. Cas. 1914 C 156, it was held that a yard clerk, proceeding through the yards to meet an incoming freight train, from another state, for the purpose of taking down the numbers of the cars, was employed in interstate commerce within the meaning of the Federal act though the yard was a terminal for that particular train. If, as alleged here, there was a constant movement of interstate cars, decedent must necessarily on the day he was injured, have been subjected to the duty of making a record of some car used in interstate commerce. It is true that the complaint does not in direct terms aver that at the time there was any specific car in the yards employed in interstate commerce, but that there was such car is fairly and reasonably inferable from the facts averred, in which case the complaint is sufficient to repel a demurrer for want of facts. Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N.E. 675, 102 N.E. 99.

Appellant's memorandum to its demurrer to this paragraph states that the facts averred do not show, (1) that appellant owed decedent any duty, (2) that it violated any duty it owed him, or (3) that it violated any duty owing decedent that was the proximate cause of the injury. The facts averred show decedent, when injured, was not a trespasser, but, on the other hand, was in a proper place for the performance of his duties. By the express terms of the Federal Liability Act the carrier is rendered liable to one employe for injury resulting from the negligence of its other servants. As said in Mondou v. New York, etc., R. Co., supra: "The rule that the negligence of one employe resulting in injury to another was not to be attributed to their common employer, is displaced by a rule imposing upon the employer responsibility for such an injury, as was done at common law when the injured person was not an employe." Appellant here was chargeable by law with the duty...