Terre Haute & I.R. Co. v. Fowler
| Decision Date | 23 February 1900 |
| Citation | 154 Ind. 682,56 N.E. 228 |
| Parties | TERRE HAUTE & I. R. CO. v. FOWLER. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Montgomery county; Jere West, Judge.
Action by Alfred Fowler, administrator of Robert P. Fowler, deceased, against the Terre Haute & Indianapolis Railroad Company for wrongful death. From verdict for plaintiff, defendant appeals. Affirmed.
John G. Williams and Thomas & Whittington, for appellant. Crane & Anderson, for appellee.
Suit by appellee to recover damages for wrongfully causing the death of Robert P. Fowler. After formal averments, it is alleged in the complaint that “for 25 years prior to the 1st day of March, 1896, said road was carried over a stream in said Montgomery county, known as ‘Walnut Fork,’ on a Howe truss bridge of one span of about 150 feet between the abutments on the banks of said stream; that the bottom of said bridge was about 25 feet above the bed of said stream, which at that point consisted of smooth rock in place; that said stream flowed between well-defined banks, about 150 feet apart, and said road and said bridge crossed said stream at an angle of about 30 degrees; that said stream, at the place crossed by said bridge, has a great fall, and for some distance above said bridge the current is very rapid, and the stream approaches said bridge upon a curve or bend, being about 300 feet up stream from the bridge; that said stream has always been accustomed to sudden and great floods, rising with great rapidity, and carrying great quantities of water and driftwood down said stream and under said bridge, frequently rising to a height of 12 or 15 feet above the ordinary flow of the water; that frequently, during the time prior to the taking down of said bridge, as hereinafter alleged, said stream rose suddenly to a height of 12 or 15 feet above the ordinary stage, carrying with it large quantities of driftwood, consisting in part of logs, stumps, and tops of large trees, all of which safely passed through and under said bridge without injury thereto or to said railroad, of all of which facts then, and at all times thereafter, the defendant had full notice and knowledge; that on the said 1st day of March, 1896, the defendant removed said bridge, and in the place thereof carelessly, negligently, and unskillfully constructed and placed on the smooth surface of the bottom rock of said stream another bridge, consisting of a series of bents constructed of pine timber about 16 inches square, resting on mudsills placed upon the smooth surface of said rock bottom, without stays or anchors or other fastenings to hold them in place, at about an angle of 30 degrees with the thread of the stream, and at right angles with the line of said road; that 12 of said bents were placed parallel to each other, at the angle and in the manner aforesaid, on said rock bottom, 12 feet apart, and in such position with reference to said stream that an unobstructed opening of 1 to 2 feet was left for the passage of water and driftwood between said bents; that said bents acted as an obstruction to the flow of said stream, and caught the driftwood in time of high water; that about 6 o'clock on the afternoon of July 28, 1896, while said trestlewook was standing as aforesaid, a heavy and severe rain fell in said county along the line of said stream above said trestlework, and said stream rose suddenly to a height of about 10 feet above the ordinary stage of said stream, carrying upon and against said trestlework large quantities of drift, stumps, and large trees, which lodged against said trestlework, and about 12 o'clock p. m. of said day the force of the current of said stream and the backwater, caused by said trestlework and drift, forced said bents out of position, and carried them several feet down stream, and out of line with said road, and so destroyed said trestle that it was impossible for a locomotive engine or train to cross the same with safety; that on said July 28, 1896, plaintiff's decedent was in the employ of the defendant in the capacity of a conductor of a freight train, and upon said day had in charge a freight train running from Terre Haute to Logansport; that plaintiff's decedent arrived with his train at 11:30 p. m. on said day at Crawfordsville Junction, a point on said road about one mile south of said trestlework, and was there informed by John S. Brothers, who was then road superintendent of said road, of the severe rainstorm above mentioned, and of apprehended danger to said road at a culvert about halfway between said junction and said trestlework, and at another place a mile or so north of and beyond said trestlework; that said Brothers was the road master of defendant, having in charge the care, maintenance, and inspection of the line of said road, and knew and had knowledge of the condition of the roadbed, bridges, and trestles, and resided in Crawfordsville, in said county, within one mile of said trestlework, and upon the night of said storm was looking after the line of said road to ascertain the extent of the injures that might have resulted from said storm; that said Brothers was at said junction, and informed decedent of the apprehended injuries to said road at the two points above mentioned, and no others, and, after said Brothers and said decedent had consulted with reference to said matters, said locomotive was detached from said train, and run forward, with said Brothers and plaintiff's decedent and the engineer and fireman and a brakeman thereon, to said culvert, where it was stopped, and the road inspected and found to be uninjured; that thereupon the plaintiff's decedent, and said engineer, brakeman, and fireman, boarded said engine, and, without any notice or knowledge of the faulty construction and condition of said trestlework, and believing the same to be safe, and upon the order of said Brothers, started forward to inspect said place of apprehended danger north of and beyond said trestlework; that, as said locomotive approached said trestlework, the engineer discovered that said trestle and track were out of line, and before said locomotive could be stopped, or the persons thereon could get off from said locomotive, it ran upon said trestlework, which gave way, and precipitated said locomotive to the ground below, and into said stream, whereby the decedent was caught between the engine and tender of said locomotive, and crushed, and carried into the water below, and drowned and killed,”-all without fault of the decedent. Demurrer to the complaint overruled. Answer in general denial. Verdict and judgment for plaintiff. Motion for new trial overruled. Error assigned by appellant on both adverse rulings.
The point made against the complaint is that the decedent, at the time he lost his life, was, without the direction or acquiescence of his employer, acting without the scope of his employment; that, being the conductor of a freight train, it was no part of his duty to inspect the track; and that when he detached the locomotive, and went forward on it to inspect reported impairments, he was performing work which he was not employed to perform, and in respect of which appellant owed him no duty to furnish him a safe trestle over which to pass; and he was therefore guilty of contributory negligence. We concede the rule to be as contended, that the master's duty to the servant only extends to the particular work, or class of work, which the servant is employed to perform, and that when the servant, without the command or acquiescence of the master, voluntarily undertakes hazardous work outside of his employment, he puts himself beyond the protection of the master's implied obligation, and if he is injured he is without remedy. Brown v. Byroads, 47 Ind. 435;Railway Co. v. Adams, 105 Ind. 151, 5 N. E. 187;Jorgenson v. Chair Co., 169 Ill. 429, ...
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