Southern Ry. Co. v. Howerton, No. 22656.

Docket NºNo. 22656.
Citation106 N.E. 369, 182 Ind. 208
Case DateOctober 08, 1914
CourtSupreme Court of Indiana

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...

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30 practice notes
  • State ex rel. Fox v. La Porte Circuit Court, No. 3583
    • United States
    • Indiana Supreme Court of Indiana
    • December 17, 1956
    ...913, 14 L.R.A.,N.S., 172, 14 Ann.Cas. 27; Atkinson v. Disher, 1912, 177 Ind. 665, 673, 98 N.E. 807; Southern R. Co. v. Howerton, 1914, 182 Ind. 208, 220, 105 N.E. 1025, 106 N.E. 369; Connell v. State ex rel. Thompson, 1925, 196 Ind. 421, 430, 431, 144 N.E. 882, 148 N.E. The sections of the ......
  • St. Louis-San Francisco Railway Co. v. Boudreaux, 113
    • United States
    • Supreme Court of Arkansas
    • July 9, 1923
    ...Act. (U. S.) 58 Law ed. 1051, Ann. Cases 1914-C, 163; 124 Ark. 127; 202 F. 766; 108 P. 774; 118 N.E. 986; 179 F. 175; 105 N.E. 1025; 106 N.E. 369. Where there are two causes of action alleged in one complaint, and one is removable on the ground of diversity of citizenship and the other not,......
  • Citizens' Tel. Co. v. Prickett, No. 23239.
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1919
    ...not usually pertain to the character of the work he was employed to perform. Southern R. Co. v. Howerton, 182 Ind. 208, 105 N. E. 1025, 106 N. E. 369. These contractors were bound to know from common knowledge that sooner or later the pole in question as it stood would be subjected to right......
  • Indianapolis Traction & Terminal Co. v. Lee, No. 9530.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 14, 1918
    ...etc., Co. v. Newby, 45 Ind. App. 540-544, 90 N. E. 29, 91 N. E. 36;So. Ry. Co. v. Howerton, 182 Ind. 208, 223, 224, 105 N. E. 1025, 106 N. E. 369;New Castle Bridge Co. v. Doty, 168 Ind. 259, 266, 267, 79 N. E. 485;Bowers v. Starbuck (Sup.) 116 N. E. 301;Chicago, etc., R. Co. v. Dinius, 180 ......
  • Request a trial to view additional results
30 cases
  • State ex rel. Fox v. La Porte Circuit Court, No. 3583
    • United States
    • Indiana Supreme Court of Indiana
    • December 17, 1956
    ...913, 14 L.R.A.,N.S., 172, 14 Ann.Cas. 27; Atkinson v. Disher, 1912, 177 Ind. 665, 673, 98 N.E. 807; Southern R. Co. v. Howerton, 1914, 182 Ind. 208, 220, 105 N.E. 1025, 106 N.E. 369; Connell v. State ex rel. Thompson, 1925, 196 Ind. 421, 430, 431, 144 N.E. 882, 148 N.E. The sections of the ......
  • St. Louis-San Francisco Railway Co. v. Boudreaux, 113
    • United States
    • Supreme Court of Arkansas
    • July 9, 1923
    ...Act. (U. S.) 58 Law ed. 1051, Ann. Cases 1914-C, 163; 124 Ark. 127; 202 F. 766; 108 P. 774; 118 N.E. 986; 179 F. 175; 105 N.E. 1025; 106 N.E. 369. Where there are two causes of action alleged in one complaint, and one is removable on the ground of diversity of citizenship and the other not,......
  • Citizens' Tel. Co. v. Prickett, No. 23239.
    • United States
    • Indiana Supreme Court of Indiana
    • November 25, 1919
    ...not usually pertain to the character of the work he was employed to perform. Southern R. Co. v. Howerton, 182 Ind. 208, 105 N. E. 1025, 106 N. E. 369. These contractors were bound to know from common knowledge that sooner or later the pole in question as it stood would be subjected to right......
  • Indianapolis Traction & Terminal Co. v. Lee, No. 9530.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 14, 1918
    ...etc., Co. v. Newby, 45 Ind. App. 540-544, 90 N. E. 29, 91 N. E. 36;So. Ry. Co. v. Howerton, 182 Ind. 208, 223, 224, 105 N. E. 1025, 106 N. E. 369;New Castle Bridge Co. v. Doty, 168 Ind. 259, 266, 267, 79 N. E. 485;Bowers v. Starbuck (Sup.) 116 N. E. 301;Chicago, etc., R. Co. v. Dinius, 180 ......
  • Request a trial to view additional results

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