Southern Indiana Railway Co. v. Harrell

Decision Date09 October 1903
Docket Number20,137
Citation68 N.E. 262,161 Ind. 689
PartiesSouthern Indiana Railway Company v. Harrell
CourtIndiana Supreme Court

Rehearing Denied January 13, 1904.

From Greene Circuit Court; O. B. Harris, Judge.

Action by Jackson J. Harrell against the Southern Indiana Railway Company. From a judgment for plaintiff, defendant appeals. Appealed from Appellate Court, under clause 3, § 1337j Burns 1901.


F. M Trissal, T. J. Brooks, W. F. Brooks, and Emerson Short, for appellant.

J. R East, R. H. East and McHenry Owen, for appellee.


Gillett, J.

This was an action for an injury to the person of appellee. He recovered in the trial court and the judgment was affirmed by the second division of the Appellate Court. Appellant appeals to this court under clause 3, § 1337j Burns 1901, and assigns as error here that said division erred in affirming the judgment of the trial court. We proceed to a consideration of such assignments of error in the Appellate Court as were not subsequently waived.

There were seven paragraphs of complaint and appellant demurred to each of them. Its demurrer was overruled and it reserved a general exception to the ruling. Although appellant sought on appeal to question severally said ruling as to each of said paragraphs, yet as the exception was in gross we are compelled to hold that such assignments of error present no question for our consideration. Noonan v. Bell, 159 Ind. 329, 64 N.E. 909, and cases there cited.

Appellant further assigned as error that the Greene Circuit Court erred in overruling its motion for a new trial. Among other grounds for a new trial, appellant assigned in said motion that the verdict was contrary to the evidence, and, further, that the verdict was contrary to law.

The evidence showed the following state of facts: On July 5, 1899, appellant, a railroad corporation, was engaged in the construction of a railroad bridge over White river, in the county of Greene. A temporary work or bridge had been built over the river, on which a track had been laid. A stone pier was being built under the structure, and a number of men, including appellee, were engaged in its construction, under one John Gratzer. The necessary stone were unloaded from cars, and were placed in position by means of a derrick, which was erected upon a platform a few feet north of the track. The derrick's mast was so stayed as to give the top a slight inclination toward the south, with the result that in handling a heavy stone it had a tendency to swing toward the pier and track. There was evidence that the derrick was purposely so constructed, with a view to its greater utility; but whether it can be said to have been defective or no, by reason of being so constructed, it appears that appellee, whose principal business was to arrange the tackle about the stone and lower it from the cars, knew of such tendency, and had helped to hold a rope in keeping the boom and suspended stone from swinging over the track. There had never been an attempt to handle a stone when the portion of the track that was adjacent was occupied by a moving locomotive or cars. Near the close of working hours on the day in question a locomotive and two or three flat cars stood near the east end of said temporary bridge. A heavy stone, which had just been unloaded from one of said flat cars, lay upon the pier, occupying its intended place in the top course. A short distance to the west there were several flat cars, and still further on, and near the west end of the bridge, were a portable pile-driver and its car. Appellee, who testified that there was nothing for him to do at that time, was seated upon a projecting bent. He had not received a command as to what place he should occupy. The conductor of the train said to Gratzer: "John, are you going in with us?" The latter answered that he and his men were going to set the stone and return on a hand-car. After about two minutes, occupied by the men in charge of the train in coupling the flat cars and the pile-driver and its car together, the train, as thus made up, started east, and, before the pile-driver reached the pier, the train was moving at a speed of from three to six miles an hour. In the meantime Gratzer ordered one of the men to signal the stationary engineer to raise the stone a little, it being necessary to make a mortar bed under it. The signal was given, and the stone was raised about two feet before the piledriver had passed. Three men--Courtney, Clemmons, and Polland--were holding the stone away from the track, by means of a rope, after the stone was raised above the course in which it had rested. Clemmons and Polland let go of the rope, Clemmons going to get his trowel and Polland going to get mortar. Courtney was thus left to hold the stone alone, and, as it proved too heavy for him, he abandoned the rope and sought a place of safety. The boom then swung around, and the chain which held the suspended stone caught on the running-board of the pile-driver. This caused the stone to swing east, and as it swung back it struck appellee, crushing one of his feet and injuring the other. It seems to have been but a brief interval after the stone swung clear until the chain caught on the running-board, as a number of appellee's witnesses, in effect, testified. Appellee's witness Helms, who was on the third or fourth car east of the pile-driver, testified that the stone was not suspended as he passed the derrick and that he was looking to see that all fall lines were clear. Gratzer had exclusive charge of the stone work. He directed the men and worked himself.

The various paragraphs of complaint rest on various theories. Negligence is charged against appellant in the construction of the derrick, and also against Gratzer and the conductor and the engineer severally. There is no charge that appellant did not exercise due care in the selection of said employes. Appellee's counsel say of the complaint: "The first five paragraphs minutely describe all the conditions and concurring causes of the injury. The sixth paragraph is intended to be pleaded under the second subdivision of § 1 of the employers' liability act. The seventh paragraph charges negligence against the engineer of the train and the conductor, and also against Gratzer, charging them all as vice-principals under the fourth subdivision of the act."

There was not a scintilla of evidence supporting the theory that either the conductor or the engineer was negligent. Neither of them is shown to have known that the stone was suspended or to have had any reason to apprehend that it was. The manner in which the derrick was constructed does not appear to have been the proximate cause of the accident. The derrick possessed a particular utility when constructed as it was, and it was ordinarily safe so long as it was used in accordance with the established custom that the evidence shows had before obtained. It was a master's duty to have the derrick properly constructed and maintained, but appellant was not bound to apprehend that its servant might put the same to a negligent use--a use wholly contrary to the custom that had obtained before the accident. See, on the subject of proximate cause, Enochs v. Pittsburgh, etc., R. Co., 145 Ind. 635, 44 N.E. 658; Thompson, Negligence (2d ed.), § 43 et seq.

This brings us to the question as to whether appellant was responsible for the negligence of Gratzer, assuming that he, as well as Clemmons and Polland, was guilty of negligence. As to the employers' liability act (§ 7083 et seq. Burns 1901), it is evident that appellant is not liable under the second subdivision of the first section. That subdivision was not intended to create a liability based on an order or direction, where such order or direction was as broad as the whole service, and where the injured servant, without the compulsion of an order or direction from one whose order or direction he was required to obey, was at the time governing himself according to his own judgment as to what was proper. In so far as the fourth subdivision of said section is concerned it does not appear that Gratzer belonged to any of the classes of servants particularly mentioned therein. The latter part of said subdivision is not any broader than the common law upon the subject; so we may as well consider the remaining question as to liability from that standpoint.

Assuming that Gratzer was negligent, as we have before done, it would follow that appellant might have been liable to a stranger, under the rule of respondeat superior, had he been in appellee's place. But in appellee's case negligence could not be predicated on his injury if it was a result of one of the risks of the service, because as to those risks which the servant assumes there is no duty. American Rolling Mill Co. v. Hullinger, ante, 673; Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N.E. 464.

When the contract of service is entered into the master impliedly contracts that he will exercise ordinary care in the selection and retention of the employe's co-servants, and such employe impliedly contracts that, this requirement complied with, he will assume, as one of the risks of the service, the perils of injury from the negligence of such co-servants. If appellee has made out a case, it must appear that in giving the order to raise the stone Gratzer was acting as a vice-principal, and not as a mere fellow servant.

The controlling consideration in determining whether an employe is a vice-principal is, not his comparative rank, not his authority to command, and not his authority to employ and discharge, but whether he is the representative of the master in respect to those duties which the master can not escape by a delegation of them. Indiana Car Co....

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