Southern Ry. Co. v. Howerton

• Decision Date: 08 October 1914
• Docket Number: No. 22656.,22656.
• Citation: 106 N.E. 369,182 Ind. 208
• Parties: SOUTHERN RY. CO. et al. v. HOWERTON.
• Court: Indiana Supreme Court

182 Ind. 208

106 N.E. 369

SOUTHERN RY. CO. et al.

v.HOWERTON.

No. 22656.

Supreme Court of Indiana.

Oct. 8, 1914.

On petition for rehearing. Denied.

For former opinion, see 105 N. E. 1025.

MYERS, J.

[1] An earnest and able brief is filed by appellee, on petition for a rehearing, in which it is urged that we mistook the gravamen of the action as one of failure to provide a safe place to work, whereas it is asserted the cause of action is for negligence in placing the torpedo on the track, and leaving it there. It is true that the negligence alleged is in placing a torpedo on the track and leaving it there, but it must be plain that it is, in its last analysis, the failure to make and keep the place of work reasonably safe, and in appellee's original brief his position is stated as follows, in his points and authorities, in Nos. 1, 5, 7, 19, 24, and 26:

(1) “In charging a failure to furnish a safe place to work, it is not necessary to allege that something was defective or out of repair. A useful appliance, in perfect condition, may be so used or placed by the master, or some person to whom the master has attempted to delegate the duty of making or keeping a safe place, as to become an obstruction or other dangerous agency.”

(5) “A complaint, alleging facts from which a breach of nondelegable duty to provide a reasonably safe place to work may be inferred, is good.”

(7) “If the master delegates the duty to another to furnish his servant a safe place to work, this does not excuse the master and the person to whom the duty is delegated as a vice principal.”

(19) “Every place where a servant is required to go in the line of his duty must be kept safe, even if it requires inspection to do so.”

(24) “No matter by whom the duty of furnishing a safe place to work is performed, the master is liable.”

(26) “Proof of a custom to furnish servants an unsafe place to work is no defense.”

Appellee's requested instructions were on that theory, involving, under the particular allegations, changing conditions of the place; that is, of reasonable safety or otherwise, depending whether torpedoes were or were not on the track.

[2] It is next urged that we were in error in our conclusion that the cause had been tried in the court below as a common-law action, whereas, as counsel assert, the complaint was drawn under the federal act. There is no allegation in the complaint, or finding by the jury, that appellants were engaged in interstate commerce, or that appellee was so engaged. It may possibly be inferred from the allegation that the line of railway extended from Louisville through Indiana to St. Louis, but it is essential that it should appear that appellee was injured while engaged in interstate commerce. Ill. Cent. Co. v. Behrens (1914) 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051. But it is conceded and asserted by appellee in the last brief that the cause was tried as a common-law action.

[3] It is next urged that we were in error respecting the subject of assumption of risk, and that instruction 4 is only a modified form of instruction 15 tendered by appellants, and therefore the error an invited one. The difficulty with appellee's position is that this instruction is just the reverse of instruction 15, and, as we pointed out, wholly disregards the question of assumption of risk, which, under the holdings of the Supreme Court of the United States, we are not at liberty to ignore. In Seaboard, etc., Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, it is said:

“It seems to us that section 4 [Act April 22, 1908, c. 149, 35 Stat. 66 (U. S. Comp. St. Supp. 1911, p. 1323)], in...