T.J. Moss Tie Co. v. Hite
| Citation | 128 N.E. 752,190 Ind. 198 |
| Decision Date | 12 November 1920 |
| Docket Number | No. 23866.,23866. |
| Parties | T. J. MOSS TIE CO. v. HITE. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Vanderburgh County; John H. Foster, Special Judge.
Action by Fred Hite against T. J. Moss Tie Company. Judgment for plaintiff, and defendant appeals. Affirmed (superseding former opinions of Appellate Court, 119 N. E. 145, 1003).Philip W. Frey and John D. Welman, both of Evansville, for appellant.
Williamson, Wilde & Meyer, of Evansville, for appellee.
This was an action by the appellee to recover for injuries sustained when he fell while walking a 30-foot plank with a cross-tie on his shoulder, and the tie fell upon and broke his leg.
Appellant complains that the trial court erred in overruling its demurrer to the amended complaint, which alleged, in substance, the following (among other) facts:
That the defendant is, and for 20 years has been, a corporation organized and existing under the laws of the state of Missouri, and is now, and for 20 years has been, engaged in the manufacture, buying, and selling of cross-ties, and now has, and on and for years prior to October 31, 1913, had, an agency for the conduct of its business at Evansville, Ind., from whence it purchased cross-ties at Evansville, and at other points in Kentucky, Illinois, and Indiana, which ties it caused to be shipped in barge loads to Evansville; that on the 31st day of October, 1913, certain codefendants (in whose favor a verdict was directed and was returned) were engaged in the transportation business on the Ohio river at the port of Evansville, in which they used towboats and barges; and in conducting said business each of the defendants employed more than five men; that on said date the defendants caused a barge load of cross-ties belonging to appellant to be transported on the Ohio river to Evansville and moored to the Louisville & Nashville Railroad incline, the tracks of which were laid to the waters' edge and connected with the track of said railroad; that the barge was so moored for the purpose of unloading the cross-ties from the barge into cars which had been placed on the incline for that purpose; that five cars had been placed on the incline; and that one was so negligently placed that it extended beyond the end of the barge; that the proper way to place the cars was so that a gangplank could be extended from the door of the car into the barge at right angles to each; that the floor of said car on which plaintiff was put to work by defendants was 5 feet lower than the top of the gunwales of said barge, and the end of the car upstream was 5 feet higher than its other end, and the said gunwale sloped 5 feet from the end to the middle of the barge; that defendants caused a gangplank 35 feet long 12 1/2 inches wide and 2 1/2 inches thick to be laid from the gunwale into the door of the car in such manner that the end of the plank in the car was 10 feet further down stream than the end placed on the barge; that by reason thereof a space of 3 or 4 inches was between the floor of the car and that end of the plank (at one side), and to prevent the plank from tilting when walked upon, it was necessary, in order to fill such space, to place a piece of wood or something under the lower side of the plank, and make it fast to the plank, which defendants negligently failed to do; that defendants undertook to fill such space with a “chuck” of timber 5 feet long and 2 to 4 inches thick; that the ordinary way to moor such barge was by means of lines sufficient in number and so attached to objects on shore and to each end and the middle of the barge as to prevent it from moving in any direction; but that defendants negligently failed to attach a line to the stern of the barge; that as the cross-ties were removed the lines became slack, and the defendants negligently failed to tighten them, but premitted them to remain so slack that the barge could and did move up and down; that defendants knew the barge was in an unsafe condition by reason of such insufficient number of lines and such slackening of the lines, and “were requested” to take out the slack and to make the barge so it could not move, but failed and neglected to do so; that plaintiff was employed by the defendants, on said date, to assist in unloading cross-ties from the barge and loading them into said car, and was directed by defendants to load them into said car, and the only means of passing from the barge into the car was over and upon said plank, which he proceeded to do; that other employés of the defendant to the number of 20 were doing likewise; that the work of loading and unloading the cross-ties into all of said cars was done under the direction and control of the defendants, and all of said 20 persons, including the plaintiff were subject to the control of defendants' officers and agents who were there present; that by reason of the said negligent and careless manner in which the said barge was moored, it moved up and down and in and out, and thereby caused the plank to work off the chuck and the chuck to work out from beneath it, which would not have occurred if the defendants had not negligently permitted said mooring lines to become slack; that plaintiff took a cross-tie weighing 150 pounds from the barge upon his shoulder, and while he was walking along upon said plank, going into said car, the plank tilted by reason of having no support under the lower side, and caused him to lose his balance and fall, whereby he sustained certain injuries, and by reason of them was confined to his bed for six months, and prevented from going about his daily business and rendered unable to perform manual labor, and was put to great expense for medical and surgical attention, medicines, nursing, and care.
[1] Appellant urges that the foregoing facts are not sufficient to constitute a cause of action at common law. That is undoubtedly true. But it clearly appears from the record that the trial court construed the complaint as a complaint by an employé against the employer of more than five persons, to recover damages for an alleged negligent violation by the employer of Acts 1911, chapter 88, page 145 (Burns' 1914, § 8020a et seq.). As so construed, we think it sufficiently appears therefrom that the appellant company was engaged in a business in this state in which it was employing five or more persons, and that agents, servants, and employés of appellant were guilty of negligence in the matter of making and keeping the place to work and appliances safe, under the changing conditions of the employment, and that an injury to plaintiff resulted, in whole or in part, from such negligence. J. Wooley Coal Co. v. Tevault, 187 Ind. 171, 118 N. E. 921, 119 N. E. 485.
[2][3][4] It is urged that upon the return of a verdict in favor of the codefendants of appellant, alleged to have been in the business of towing barges on the river, the court ought to have rendered judgment in favor of appellant, because (it is asserted) the evidence showed that, whatever appellant did or failed to do, it was by the hand of such codefendants and their servants. But the complaint, as above set out, wholly fails to allege or show that appellant is charged with liability for the acts and omissions of its codefendants. Each averment is that the “defendants,” each and all of them, did and omitted to do the things alleged. The averments do not bring this case within the rule declared by Indiana Nitroglycerine and Torpedo Co. v. Lippincott Glass Co., 165 Ind. 361, 75 N. E. 649, as to the effect of the verdict under the issues joined in that case. But even there, the relief granted was to order a new trial, and not to give judgment in favor of the alleged employer. Appellants' motion for judgment upon the verdict presented no question under the evidence, but only the question whether such verdict had decided against appellant the issues joined on the pleadings, and it was properly overruled. The same question is also sought to be presented by the motion for a new trial, as to the weight and effect of the evidence tending to show that whatever negligent acts and omissions the appellant was chargeable with were the acts and omissions of its codefendants. But we think there was evidence sufficient to sustain the verdict, if the jury believed appellee's witnesses.
There was some evidence tending to show that the appellee was employed and put to work by appellant's local agent; that 20 men were employed at that time, unloading appellant's cross-ties from the barge into five cars that stood on a track alongside the barge; that the barge was 120 feet long, and the five cars, together, were 190 feet long, and the end car, on which appellee was working, extended past the end of the barge, so that a plank from near the end of the barge had to be laid angling down stream to reach the car door; that appellee was taking cross-ties from near the stern, or downstream end of the barge; that the car was on a grade, so that the downstream end was lower, and the gunwale of the barge sloped from the downstream end toward the middle, and...
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