Thacker v. Chicago, Indianapolis And Louisville Railway Co.
| Decision Date | 20 June 1902 |
| Docket Number | 19,614 |
| Citation | 64 N.E. 605,159 Ind. 82 |
| Parties | Thacker v. Chicago, Indianapolis and Louisville Railway Company |
| Court | Indiana Supreme Court |
From Monroe Circuit Court; W. H. Martin, Judge.
Action by Charles Thacker against the Chicago, Indianapolis and Louisville Railway Company for damages on account of personal injuries sustained. From a judgment for defendant on demurrer to complaint, plaintiff appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Reversed.
W. E Hottle, J. R. East and R. H. East, for appellant.
E. C Field and W. S. Kinnan, for appellee.
Complaint by appellant for personal injuries, in four paragraphs. Demurrer to each paragraph for want of facts sustained. Appellant refusing to plead further, judgment was rendered against him. The assignments of error not waived call in question the action of the court in sustaining the demurrer to the first, second, and fourth paragraphs of the complaint.
Appellant was a section man engaged in the line of his duty with an extra gang of men running a hand-car to Bryfogle, a station on appellee's road. One McGill was section foreman, and had ordered the men to make this trip for the purpose of doing work at said place. Appellant and the other men in the gang were working under the orders of said foreman. It required two hand-cars to carry the men. Appellant, with others, was riding on the front hand-car, and following this was another hand-car on which the foreman and other laborers were riding. The front car, on which appellant was riding, had two men who acted as brakemen, and who could check, stop, or control the movement of the hand-car by pressing their feet on a brake; that it was the duty of said brakemen, when the signal was given by the foreman, McGill, to put on or take off the brake and otherwise control said car. In addition to the above, it is alleged in the first paragraph of the complaint that in approaching Bryfogle they were going down grade at a speed of fifteen or twenty miles an hour, when "McGill gave a signal to said brakemen to stop; that it was the duty of said brakemen, and each of them, when said signal to stop was given, to notify those on the car of said signal, and give them time to catch hold of something, or stay themselves in some way, but that when said signal to stop was given said brakemen, without giving any warning or notice of any kind, or before any warning or notice could be given, said brakemen at once threw on the brake in a careless and reckless manner, bringing said car to such a sudden stop that appellant was pitched violently forward off said hand-car" and injured.
Appellant says this action was brought under the employer's liability act, and that the first paragraph is founded on the fourth subdivision of § 7083 Burns 1901, § 5206s Horner 1901, which reads as follows:
Appellant concedes that said first paragraph would be bad at common law, because it shows that his injury was caused by the negligence of the brakemen, his fellow servants, but insists that the same is sufficient under that part of said subdivision not in italics.
At common law a master owes certain duties to his servants which concern their safety, and if he intrusts such duties to one of his servants, who negligently performs the same, by reason of which another servant is injured without his fault, the master is liable therefor, because the servant to whom such duties are intrusted is, in the performance thereof, a vice principal, and not a fellow servant. A vice principal, therefore, is one who represents the master in the discharge of those duties which the master owes to his servants. If, however, the servant whose negligence caused the injury was not at the time discharging a duty which the master owed to his servants, but simply a duty which the servant owed to the master, he was a fellow servant with others engaged in the common business, and the master would not be liable for any injury inflicted upon such fellow servants by reason of his negligence. Justice v. Pennsylvania Co., 130 Ind. 321, 325, 30 N.E. 303, and cases cited; Hodges v. Standard Wheel Co., 152 Ind. 680, 687, 688, 52 N.E. 391, and cases cited; Robertson v. Chicago, etc., R. Co., 146 Ind. 486, 45 N.E. 655; Mitchell v. Robinson, 80 Ind. 281, 284, 41 Am. Rep. 812; Krueger v. Louisville, etc., R. Co., 111 Ind. 51, 52, 11 N.E. 957; Brazil, etc., Co. v. Young, 117 Ind. 520, 522, 20 N.E. 423; 12 Am. & Eng. Ency. Law (2d ed.), 946, 948.
In this State there is a clear distinction between a superior servant and a vice principal. A superior servant is generally one who has authority to direct and control other servants, and may or may not be charged with any of the duties which the master owes his servants. Whether or not one is a vice principal does not in any way depend upon his rank. Justice v. Pennsylvania Co., supra; Hodges v. Standard Wheel Co., supra; Robertson v. Chicago, etc., R. Co., supra; 12 Am. & Eng. Ency. Law (2d ed.), 948, 949.
Before the passage of said act, it was held as to most, if not all, of the persons described in that part of said fourth subdivision printed above in italics, for whose negligence railroads are made liable, that they did not perform any duty which a railroad owed its servants, and that they were, therefore, mere fellow servants, for whose negligence railroads were not liable. That part of said subdivision has, therefore, enlarged liabilities of railroads. Baltimore, etc., R. Co. v. Little, 149 Ind. 167, 48 N.E. 862; Indianapolis Union R. Co. v. Houlihan, 157 Ind. 494, 499, 54 L. R. A. 787, 60 N.E. 943.
It is evident, however, that the part of said subdivision upon which appellant bases his first paragraph of complaint only makes railroads liable for the negligence of such persons as are performing duties which it owes its servants in certain cases. Such persons were vice principals, and employes injured by their negligence in the discharge of such duties could recover therefor before said act was passed. It is clear that such part of said subdivision is the mere enactment of a liability which already existed at common law, and that the class of vice principals was not increased thereby. It is not as broad as the common law liability, because the right to recover is limited to persons injured while obeying or conforming to the order of some superior at the time of the injury having power to direct. The right to recover for injuries caused by the negligence of vice principals is not so limited at common law. It follows that if said appellant's first paragraph of complaint is not good at common law, which he concedes it is not, it is not good under the part of said fourth subdivision, upon which he claims it is founded.
It was held by this court in Justice v. Pennsylvania Co., 130 Ind. 321, 325, 326, 30 N.E. 303, that a section foreman of a railroad having power to employ and discharge section-hands is a vice principal when employing and discharging such employes, but that he was a fellow servant in his control of such men after their employment. The court said in that case:
Even if McGill, the foreman, in giving the signal to stop the hand-car was performing a duty which the master owed its servants, and was, as to the same, a vice principal, yet no liability is shown by the allegations of said first paragraph, because no facts showing negligence on the part of said foreman are alleged therein. The court did not err in sustaining the demurrer to the first paragraph of complaint.
The second paragraph alleges the same facts as the first, but charges that the foreman, "McGill, gave...
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Thacker v. Chicago, I.&L. Ry. Co.
......H. Martin, Judge. Action by Charles Thacker against the Chicago, Indianapolis & Louisville Railway Company. From a judgment in favor of defendant, plaintiff appeals. Transferred ......