Richey v. Cleveland, C., C. & St. L. R. Co.
| Decision Date | 28 November 1911 |
| Docket Number | No. 21,419.,21,419. |
| Citation | 176 Ind. 542,96 N.E. 694 |
| Court | Indiana Supreme Court |
| Parties | RICHEY v. CLEVELAND, C., C. & ST. L. R. CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Bartholomew County; Marshall Hacker, Judge.
Action by Walter C. Richey against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment sustaining a demurrer to the complaint, and plaintiff appealed to the Appellate Court, whence the cause was transferred with recommendations (93 N. E. 1022). Affirmed.
Hord & Adams, for appellant. Carter & Morrison, for appellee.
Appellant instituted an action for damages for personal injuries in two paragraphs of complaint, one of which was withdrawn, and a demurrer was sustained to the other, from which ruling he appeals.
[1][2][3] The material allegations of the complaint on the subject of the negligence claimed are: That on the 27th day of March, 1905, the plaintiff was an employé in the service of the defendant, doing common labor as a section hand in repairing and maintaining the railroad tracks of the defendant, and doing other varied services, on a section about three miles long, extending from the town of Waldron in a northwesterly direction to Wheeler Creek, which section, with the hand cars, tools, implements, and the employés, were under the control, supervision and subject to the orders of an employé of said defendant known as a “section foreman,” and at said time this plaintiff and other section hands laboring for defendant were under the control and subject to the orders of the section foreman, who were engaged in the same common service and in the same department of service of the defendant, under the orders of the section foreman, who at the time was a co-employé and fellow servant with the plaintiff, and the other employés on the section. That the section foreman during all of the time, in performing the service of the corporation, was then and there acting and duly authorized so to do in the place of, and performing the duties of, the corporation in that behalf, as its duly authorized agent. That upon said day, and for a long time previous thereto, the plaintiff was under the absolute control and subject to the orders and direction of the section foreman, in performing his work and labor upon the section. Upon the day aforesaid, and a long time previous thereto, the defendant owned a machine commonly called and known as a “hand car,” which was then, and for a long time before said time hand been, in the possession and under the exclusive control of the section foreman, which was used by the defendant, under the supervision and control of the section foreman for the defendant, for the purpose of transporting the section foreman and the section hands under his control, and subject to his order, along the line of said section, for the purpose of performing the duties of the corporation, and also for the purpose of carrying and transporting tools, implements, lifting jacks, cross-ties, railroad iron, spikes, dirt, iron rails, gravel, and other material, in repairing and maintaining the roadbed of the corporation, and for performing other duties pertaining thereto. The hand car was a large and heavy machine, with iron wheels, propelled by an appliance attached thereto operatedby hand, and propelled by the employés of the company with handle bars. That the machine and car was also equipped with a brake for checking and stopping the car. That upon said day the plaintiff, with other sectionmen who were employés of the defendant, was unloading cross-ties and cars of the defendant at the town of Waldron on said section, when the section foreman gave this plaintiff and the other employés working on said section a specific and special order to desist from that work and load upon said hand car their shovels, picks, lifting jacks, and other tools belonging to the defendant, and specifically ordered that this plaintiff and the employés working upon said section (which order and direction he was authorized to give) get upon the hand car, and proceed with him thereon to the west end of said section at Wheeler Creek, to make repairs upon the roadbed of the defendant by surfacing the same. That while traveling and proceeding under said order and direction of the foreman, who had charge of and management of the brakes, and the management of the car by virtue of the authority vested in him by the defendants to do so, and while traveling upon the hand car subject to the orders of the section foreman to perform the duties required of them, the said hand car while running at a high rate of speed, to wit, at the rate of 12 miles per hour, over the defendant's road, and was being propelled as aforesaid by this plaintiff and the other employés under the order and direction of the section foreman who was then present upon the car, ordering and directing its movement, and who was the only person authorized to operate or apply the brakes on the hand car, and who was the only person who had any authority to control or direct the movements and operations of the car, which was then heavily loaded with implements, tools, and the section foreman and other employés on the section, and, while so running the hand car at a high rate of speed on a downgrade, the section foreman carelessly and negligently and with great force, without any notice to this plaintiff, suddenly applied the brakes to the car, when there was no necessity therefor, at a point more than one mile from their destination, unexpectedly to this plaintiff and the other employés of the car, whereby the car was quickly, suddenly, and violently checked, and reduced from a speed of 12 miles per hour to a speed of 3 miles per hour, almost instantly, by the said section foreman negligently and carelessly jumping upon and throwing his entire weight upon the brakes, he, the section foreman, then and there being a large and heavy man, by reason of which negligent conduct the plaintiff was thrown forward off of the car to the ground upon the railway bed, greatly injuring him, the injuries being set out in detail. At the time aforesaid when he was so injured he was obeying and conforming to the special and direct orders and directions of the section foreman, who then and there had competent authority in that behalf from this defendant to order and direct him, and the section foreman at the time was his superior in authority upon the section, and the section foreman, this plaintiff, and the other employés upon the section at the time were engaged in the same common service in the said department of the defendant as fellow servants performing the duties and labors of the corporation, and at the time of receiving the injury, and during the negligent conduct of the section foreman, and at all of said times, the plaintiff exercised due care and diligence to prevent said injury, and during all of said time he was free from fault or negligence contributing in any degree to his injury.
Upon these allegations appellant claims liability under subdivisions 2 and 4 of the employer's liability act (Burns 1908, § 8017), on the ground that the act enlarges the liability of the operators of railroad where injury results from the negligence of any person in their service to whose order the injured employé is bound to conform and does conform, or who is “at the time acting in the place of and performing the duty of the corporation,” and claims to recover by virtue of the order to change work and go upon the car to which he was bound to conform, and the negligent act of the section foreman, as the act of the principal, while appellee contends that the act of giving an order to change the work and go upon the car was general and no broader than the scope of the employment, the giving of which was not negligent, and that the injury did not arise proximately from that order, or in attempting to obey it, but from the act of the foreman in suddenly stopping the hand car, in doing which he was but a fellow servant within the common-law rule, and the statute, and reliance is placed by appellee upon the cases of Justice v. Pennsylvania Co., 130 Ind. 321, 30 N. E. 303, and Thacker v. Chicago, etc., Co., 159 Ind. 82, 64 N. E. 605, 59 L. R. A. 792, upon the theory that the foreman and appellant, in the matter of being transported with the tools to and from their work, were mere fellow servants. It was held, in the Justice Case, that at common law a section foreman in employing and discharging men is a vice principal, but that in directing them, after their employment, he is a fellow servant. The case was determined prior to the enactment of the employer's liability act, which enlarges the liability of railroads to those who are coemployés and fellow servants, under some conditions. It was held in Indianapolis, etc., Co. v. Houlihan, 157 Ind. 494, 60 N. E. 943, 54 L. R. A. 787, that the second or concluding clause of the fourth subdivision of the act only qualifies or limits the liability expressed to such concluding clause. The second clause of subdivision 4 is a declaration of the common-law liability. Thacker v. Chicago, etc., Co., supra. The second subdivision of section 8017 raises a liability when injury arises from the negligence of one to whose order or direction the injured party was bound to conform and did conform.
Do these subdivisions undertake to create a liability from obedience to an order only, or also from the negligent act of one whose position is such that others are bound to obey, or conform to his orders, from the fact of his position, irrespective of the thing about which he is acting, or the manner in which or the circumstances under which it is done, from which injury arises? That is, does liability arise from the fact of direct conformity to an order only, or does the negligent act of the one occupying a position which commands obedience create liability where the act is done during the time of conforming to the order?
It has been held, as to an...
To continue reading
Request your trial