Richey v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, 21,419

• Docket Nº: 21,419
• Citation: 96 N.E. 694, 176 Ind. 542
• Case Date: November 28, 1911
• Court: Supreme Court of Indiana

96 N.E. 694

176 Ind. 542

Richey
v.
Cleveland, Cincinnati, Chicago and St. Louis Railway Company

No. 21,419

Supreme Court of Indiana

November 28, 1911

From Bartholomew Circuit Court; Marshall Hacker, Judge.

Action by Walter C. Richey against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court (see 47 Ind.App. 123) under § 1429 Burns 1908, Acts 1893 p. 29, § 3.

Affirmed.

Hord & Adams and Herbert C. Jones, for appellant.

Carter & Morrison, for appellee.

Myers, J. Morris, J., dissents.

OPINION

[176 Ind. 543] Myers, J.

This cause was transferred to the Supreme Court by the Appellate Court with its recommendations.

Appellant instituted an action for damages for personal injuries. Two paragraphs of complaint were filed, one of which was withdrawn, and a demurrer was sustained to the other, from which ruling plaintiff appeals.

The material allegations of the complaint on the subject of the negligence claimed are that on March 27, 1905, plaintiff [176 Ind. 544] was an employe in the service of 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 in a northwesterly direction from the town of Waldron to Wheeler creek, which section, with the hand-cars, tools, implements and the employes were under the control and supervision, and subject to the orders, of an employe of said defendant, known as a section foreman, and that at said time this plaintiff and other section-hands laboring for defendant were under the control of, and subject to, the orders of the section foreman, who was engaged in the same common service and was a coemploye and fellow servant with the plaintiff and the other employes on the section; that the section foreman, during all the time, in performing the service of the corporation, was then and there acting 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 prior thereto, 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; that upon the day aforesaid, and a long time prior thereto, defendant owned a machine commonly called a hand-car, which was then, and for a long time before said time had been, under the exclusive control of the section foreman, and which was used by defendant, under the supervision and control of the section foreman, 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 purposes of performing the duties of the corporation, and also for the purpose of carrying tools, implements, lifting-jacks, cross-ties, railroad iron, spikes, dirt, iron rails, gravel and other material, used in repairing and maintaining the roadbed of the corporation, and for performing other duties pertaining thereto; that the hand-car was a large and heavy [176 Ind. 545] machine, with iron wheels, and was propelled by an appliance that was operated [96 N.E. 695] by hand by the employes of the company; that the car was also equipped with a brake for checking and stopping it; that upon said day, plaintiff and other employes of defendant were unloading cross-ties at the town of Waldron, when the section foreman gave this plaintiff, and other employes working on said section, a special order to desist from that work, and to load upon said hand-car their shovels, picks, lifting-jacks and other tools belonging to the defendant, and he specifically ordered plaintiff and the employes working upon said section (which order and direction he was authorized to give) to get upon the hand-car, and proceed with him to the west end of said section at Wheeler creek, to make repairs on defendant's roadbed, by surfacing it; that while 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 defendant 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, while said hand-car was running at the rate of twelve miles an hour on a down-grade over defendant's road, and while it was being propelled by this plaintiff and the other employes, 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 the brakes on the hand-car or who had any authority to direct the operating of the car, which was then heavily loaded with implements and tools, said section foreman carelessly and negligently, and with great force, without any notice to this plaintiff and the other employes on said car, suddenly applied the brakes to the car when there was no necessity therefor, at a point more than one mile from the destination, whereby the speed of the car was quickly, suddenly and violently reduced from twelve miles an hour to three miles an hour, by said section [176 Ind. 546] foreman, who was a large and heavy man, negligently and carelessly throwing his entire weight upon the brakes, by reason of which negligent conduct said plaintiff was thrown forward off the car to the ground upon the railway bed, and was greatly injured; that at the time plaintiff was so injured he was obeying the 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 employes upon the section at the time were engaged in the same common service in 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 said times, plaintiff exercised due care and diligence to prevent said injury, and during all said time he was free from fault or negligence contributing in any degree to his injury.

Upon these allegations appellant claims liability under subdivisions two and four of the employers' liability act (Acts 1893 p. 294 § 8017 Burns 1908), on the ground that the act enlarges the liability of the operators of railroads where injury results from the negligence of any person in their service to whose order the injured employe 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." He claims to recover by virtue of the order to change work and go upon the car, to which order he was bound to conform, and the negligent act of the section foreman, as the act of the principal. Appellee contends that the act of giving an order to change the work and to go upon the car was general, and less broad 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 [176 Ind. 547] the foreman in suddenly stopping the hand-car, in the doing of which he was but a fellow servant within the common-law rule, and the statute. Reliance is placed by appellee on the cases of Justice v. Pennsylvania Co. (1892), 130 Ind. 321, 30 N.E. 303, and Thacker v. Chicago, etc., R. Co. (1902), 159 Ind. 82, 59 L. R. A. 792, 64 N.E. 605, 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 case first cited, 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 employers' liability act, which under some conditions enlarges the liability of railroads to those who are coemployes and fellow servants. It was held in the case of Indianapolis Union R. Co. v. Houlihan (1901), 157 Ind. 494, 54 L. R. A. 787, 60 N.E. 943, that the second clause of the fourth subdivision of the act only qualifies the liability expressed in such clause.

The second clause of subdivision four [96 N.E. 696] is a declaration of the common-law liability. Thacker v. Chicago, etc., R. Co., supra. Subdivision two of § 8017, supra, 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, from the fact of his position, to obey, or conform to his orders, 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?

[176 Ind. 548] It has been held that an order must be special, as contradistinguished from a general order as broad as the scope of the service and the employment, but these cases will be found to present somewhat exceptional facts. Indianapolis St. R. Co. v. Kane (1907), 169 Ind. 25, 80 N.E. 841; McElwaine-Richards Co. v. Wall (1906), 166 Ind. 267, 76 N.E. 408; Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L. R. A. 460, 68 N.E. 262; Indiana Mfg. Co. v. Buskirk (1904), 32 Ind.App. 414, 68 N.E. 925; Grand...