The Chicago and Erie Railroad Company v. Lee

• Decision Date: 12 March 1897
• Docket Number: 2,095
• Citation: 46 N.E. 543,17 Ind.App. 215
• Parties: THE CHICAGO AND ERIE RAILROAD COMPANY v. LEE, ADMINISTRATOR
• Court: Indiana Appellate Court

46 N.E. 543

17 Ind.App. 215

THE CHICAGO AND ERIE RAILROAD COMPANY v. LEE, ADMINISTRATOR

No. 2,095

Court of Appeals of Indiana

March 12, 1897

From the Huntington Circuit Court.

Reversed.

W. O Johnson and Kenner & Lesh, for appellant.

J. C Branyan, J. S. Branyan, W. H. Hart and J. J. Hart, for appellee.

OPINION

ROBINSON, J.

Appellee, as administrator of the estate of one Sloan, brought this action to recover damages for the death of said Sloan, caused by the negligence of appellant. A demurrer to the complaint was overruled and the cause put at issue by the general denial. Appellant moved for judgment in its favor upon the special verdict, which was overruled, as was its motion for a venire de novo. Upon motion, judgment was rendered upon the special verdict in favor of appellee, after which appellant's motion for a new trial was overruled.

The complaint is in one paragraph and alleges, in substance, that on the day of the accident the decedent was in the employ of appellant as a brakeman; that on said day, while in his line of duty, while attempting to make a change of link in one of the cars, preparatory to making a coupling of the cars, his foot was caught between one of the ties on said road and two wires running parallel with and close thereto, which wires are sometimes called signal wires, and were there placed by appellant, running from the interlocking switch to the tower house or to the home semaphore; that the wires were used by appellant as an appliance in making switches or switching its trains; that decedent's foot being so caught in said wires and held fast so that it was impossible for him to extricate the same, and the train being moved backward, threw him upon the track and the cars passed over his body, killing him instantly; that the appellant was "guilty of negligence in this: that it allowed said wires for two weeks after the same had been there placed, running under the rails of its road and parallel with the ties, to remain unboxed or uncovered, and liable at any time to trip or catch its employes and hold them fast until the train there moving would crush them; plaintiff further avers that the defendant and its superior officers well knew that the same was a dangerous appliance, and that the wires being so small and so near the ground, that they were not perceived by decedent before he was caught thereby, and that he was ignorant of the danger, and it was not to him apparent, and that he was, in all that he did in the premises, wholly free from fault, and that his death resulted from the negligence and carelessness of the defendant in not providing for the boxing and covering of said wires." It is further averred that the decedent, at the time of his death, was twenty-two years old, of vigorous health, of temperate and industrious habits, capable of earning $ 65.00 per month, and was in line of promotion where he could earn from $ 100.00 to $ 125.00 per month; that plaintiff was duly appointed administrator, and that decedent left as his only heir, his widow.

We have set out, in the words of the complaint, all the allegations it contains on the question of the negligence of appellant, and freedom from fault on the part of the decedent.

It is earnestly argued, and at great length, that these allegations do not show that the decedent was without fault and that appellant was guilty of negligence, but that the complaint discloses contributory negligence on decedent's part.

Much of appellant's brief on the demurrer to the complaint is directed to a defect in the complaint as it originally appeared in the transcript, but which was afterwards corrected by a writ of certiorari.

The complaint seeks to recover for the death of an employe caused by the negligence of the appellant in maintaining its track and roadbed in an unsafe condition, and it must aver that the decedent was ignorant of the unsafe condition of the roadbed. In such a case, the usual allegation that the decedent was free from fault is, in itself, insufficient. If the decedent had notice of the defect or dangerous condition of the track at that place, and voluntarily continued in the service, he assumed the increased risk and waived any claim upon the employer for damages. Louisville, etc., R. W. Co. v. Sandford, 117 Ind. 265, 19 N.E. 770.

It is argued by appellant's counsel that the allegations of the complaint do not show that the decedent had no knowledge of the defect; while counsel for appellee contend that the allegations "that the wires were so small and so near the ground that they were not perceived by the decedent before he was caught thereby, and that he was ignorant of the danger, and it was not to him apparent," are equivalent to saying that the decedent had no knowledge of the defect in the roadbed when injured.

Applying the rule that a pleading must be construed most strongly against the pleader, we are inclined to believe the complaint is insufficient. It is not clear whether the pleader intends to say that the decedent was ignorant of the danger of going in front of a moving car, near a defect in the track, to arrange for a coupling, or whether he intended to say that the defect itself was a dangerous place, and that he had no knowledge of such danger. Appellee's right to recover rested upon the fact that the decedent did not know of the defective and dangerous condition of the roadbed at that particular place, at the time he was killed. He might have known that the defect existed and still have been ignorant of any danger in attempting to make a coupling as the train passed over it. We think that upon this very essential element in appellee's cause of action the complaint should be free from any ambiguity.

It is true that the employer is not an insurer of the employe's safety, nor is he bound to furnish a place that is absolutely safe, but he is required to use reasonable care, skill, and diligence, and to provide a reasonably safe place for his employes to work. Louisville, etc., R. W. Co. v. Corps, 124 Ind. 427, 8 L. R. A. 636, 24 N.E. 1046; Lake Shore, etc., R. W. Co. v. Stupak, 123 Ind. 210, 23 N.E. 246; Taylor, v. Evansville, etc., R. R. Co., 121 Ind. 124, 6 L. R. A. 584, 22 N.E. 876; Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156, 33 N.E. 355; Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N.E. 380; Kruger v. Louisville, etc., R. W. Co., 111 Ind. 51, 11 N.E. 957; Louisville, etc., R. W. Co. v. Buck, 116 Ind. 566, 2 L. R. A. 520, 19 N.E. 453; Cincinnati, etc., R. W. Co. v. Lang, 118 Ind. 579, 21 N.E. 317.

The complaint in an action of this kind must show that the appellant had made such a change in its roadbed as that it was guilty of actionable negligence in not providing its employes with a reasonably safe place to work; and that the decedent was not only free from any fault which proximately contributed to his death, but, also, that he had no knowledge of the defective and dangerous condition of the roadbed at the time he was killed.

The demurrer to the complaint should have been sustained.

But, if it were conceded that...