Spencer v. Ohio & M. Ry. Co.

• Decision Date: 26 January 1892
• Citation: 130 Ind. 181,29 N.E. 915
• Court: Indiana Supreme Court
• Parties: SPENCER v. OHIO & M. RY. CO.

130 Ind. 181

29 N.E. 915

SPENCER

v.OHIO & M. RY. CO.

Supreme Court of Indiana.

Jan. 26, 1892.

Appeal from circuit court, Jackson county; T. L. COLLINS, Judge.

Action by Richard Spencer against the Ohio & Mississippi Railway Company for injuries alleged to have been caused by defendant's negligence. Judgment on demurrer for defendant. Plaintiff appeals. Affirmed.

William K. Marshall, for appellant. Jason B. Brown, Ramsey, Maxwell & Ramsey, and Edw. Berton, for appellee.

MILLER, J.

The sole question is whether the amended complaint states a cause of action. It alleges, in substance, that on December 12, 1888, the company employed plaintiff to work in its roundhouse, and yard adjoining, at Seymour, and that a part of his duty was to clean its engines of ashes and fire when they came into the yard; that he was required to work under the orders of other men, until he should learn the business himself, to-wit, under the direction of James Sutton, David Quinn, and Charles Collmeyer, plaintiff himself being inexperienced; that on the night of December 28, 1888, engine 133 came into the yard, and, while it was standing on a switch track to be cleaned, he was ordered by the above-named persons to go with one of them to clean it; that, in order to do said work, it was necessary to take off a valve held by a chain that was broken, and was tied by another chain; that when plaintiff untied the chain the valve dropped down upon the ground, under the engine, midway between the rails, making it necessary for plaintiff to place his head, shoulders, arms, and the upper part of his body under the engine boiler to get the valve, which he did; that while he was thus getting the valve the engineer, who knew he was cleaning the engine, carelessly and negligently started it, and ran it upon plaintiff, thus causing his injuries; that the condition of the chain and valve rendered the machinery dangerous and unsafe, and exposed plaintiff to unnecessary hazard; that it had been in that condition for more than 10 days, and defendant knew it was in said broken and unsafe condition, and negligently permitted it to remain so, and plaintiff did not know that it was broken and unsafe until he went to said engine to clean it; that defendant knew of plaintiff's inexperience, and failed to give him any warning of the dangers of the work; that the person in charge of the engine, and running it while in the yard, was in defendant's employ, and had been for more than a year prior to that time, and was negligent in the performance of his duties, and was especially negligent in the performance of his said duty with said engine, and was not a skilled or practical engineer, and was incompetent, and only a yard hand, without experience in running or managing locomotive engines, and was by defendant's orders put at said service; that the defendant knew he was negligent and careless, and defendant was negligent and careless in employing him and retaining him in its service; that plaintiff was without fault or negligence in all he did as aforesaid, and received his said injuries without fault or carelessness on his part.

It appears from the allegations of the foregoing complaint that the fact that the chain which...