The Cincinnati, Hamilton And Indianapolis Railroad Company v. Madden
Decision Date | 17 May 1893 |
Docket Number | 15,288 |
Citation | 34 N.E. 227,134 Ind. 462 |
Parties | The Cincinnati, Hamilton and Indianapolis Railroad Company v. Madden |
Court | Indiana Supreme Court |
From the Henry Circuit Court.
The judgment is affirmed.
R. D Marshall and B. L. Smith, for appellant.
W. A Cullen and U. D. Cole, for appellee.
This was an action by the appellee against the appellant for a personal injury. The complaint was in three paragraphs, a demurrer to each of which was sustained as to the second, and overruled as to the first and third paragraphs; there was an answer by general denial, trial by jury, verdict for appellee, on which judgment was rendered over a motion for a new trial.
The errors assigned here, and not waived by failure to argue them in appellant's brief, are the overruling of the demurrer to the first and third paragraphs of the complaint, and the overruling of the motion for a new trial.
The material allegations of the first paragraph of the complaint are as follows:
The third paragraph is substantially the same, as appellant's counsel concede. There are two respects in which the sufficiency of the complaint may be considered: One relating to appellant's negligence in employing an incompetent engineer with knowledge thereof, and retaining him, after notice of his negligence and incompetency, through which the alleged injury was brought about; and the other, the wrongful direction of appellant, through one of its employes, clothed with authority so to do, by which appellee was compelled to undertake the discharge of duties other and different and more dangerous than those he had agreed to perform, through which the injury was brought about.
These are elements of separate and distinct causes of action, though no question is made as to the propriety of uniting them in a single paragraph.
The appellant's counsel, in their brief, have confined their attack on the complaint to the last point above mentioned--namely, the act of ordering appellee into a more dangerous service than that he had agreed to perform. But if the paragraphs are each good and sufficient to withstand a demurrer in regard to the alleged negligence in employing and retaining the engineer in service, with knowledge of his incompetency, then we need not inquire into the other question.
The case of Lake Shore, etc., R. W. Co. v. Stupak, 123 Ind. 210, 23 N.E. 246, was very much like this, and the complaint there, in regard to the negligence of the railway company in the employment of the engineer, was almost exactly like this, and at p. 222 this court said: citing in support thereof Indiana Car Co. v. Parker, 100 Ind. 181; Bogard v. Louisville, etc., R. W. Co., 100 Ind. 491; Robertson v. Terre Haute, etc., R. R. Co., 78 Ind. 77; Capper v. Louisville, etc., R. W. Co., 103 Ind. 305, 2 N.E. 749; Boyce v. Fitzpatrick, 80 Ind. 526; Brazil, etc., Coal Co. v. Cain, 98 Ind. 282; Indiana Mfg. Co. v. Millican, 87 Ind. 87; Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261; Indianapolis, etc., R. W. Co. v. Johnson, 102 Ind. 352, 26 N.E. 200; Pennsylvania Co. v. Roney, 89 Ind. 453.
It is alleged that the engineer, Montgomery, was a careless, inexperienced, reckless, incompetent, and untrustworthy engineer, and was known to be such by the appellant when he was hired as an engineer by it, prior to appellee's injury, and that appellee was ignorant of that fact.
This statement of facts brings the case within the well recognized exception to the general rule that the master is not liable for injuries to one of his servants resulting from the negligence of a fellow-servant, engaged with him in the same department of the master's service or business. See, also, Lake Shore, etc., R. W. Co. v Stupak, 108 Ind. 1, 8 N.E. 630; Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75, 10 N.E. 631; Spencer v. Ohio, etc., R. W. Co., 130 Ind. 181, 29 N.E. 915;...
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