The Cincinnati, Hamilton and Dayton Railroad Company v. McMullen

• Decision Date: 21 February 1889
• Docket Number: 13,330
• Citation: 20 N.E. 287,117 Ind. 439
• Parties: The Cincinnati, Hamilton and Dayton Railroad Company v. McMullen, Administrator
• Court: Indiana Supreme Court

20 N.E. 287

117 Ind. 439

The Cincinnati, Hamilton and Dayton Railroad Company v. McMullen, Administrator

No. 13,330

Supreme Court of Indiana

February 21, 1889

From the Wayne Circuit Court.

The judgment is affirmed, with costs.

R. D Marshall and H. C. Fox, for appellant.

C. H Burchenal and J. L. Rupe, for appellee.

OPINION

Mitchell, J.--

McMullen, as administrator of the estate of Stephen Wiggins deceased, brought this action against the railroad company above named to recover the pecuniary loss resulting to the wife and children of the decedent, whose death is alleged to have been wrongfully caused by the neglect of the company.

It appears from the complaint that the intestate was a conductor on one of the railroad company's freight trains, and that his death was caused on the 3d day of February, 1885, in the city of Cincinnati, Ohio, by reason of the defective and dangerous condition of a brake on one of the company's cars.

A statute of the State of Ohio, giving a right of action, to be prosecuted in the name of the personal representative for the benefit of the wife or husband and children, whenever the death of a person has been caused by the wrongful act, neglect or default of another, is incorporated in the complaint. This statute is in no material respect variant from the one covering the same subject as found in section 284, R. S. 1881.

An elaborate argument is submitted in support of the proposition that actions like the present, which were unknown to the common law and are wholly of statutory origin, can only be maintained within the jurisdiction in which the right of action accrued. Hence it is contended, the injury and death having occurred in the State of Ohio, and the right of action, if any existed, having been given by the statute of that State, that the courts of Indiana are without jurisdiction to enforce the statute of the former State.

Since the appeal was taken in the present case, this court has decided the question thus presented adversely to the view contended for by the appellant. Burns v. Grand Rapids, etc., R. R. Co., 113 Ind. 169, 15 N.E. 230.

We arrived at the conclusion in the case cited that actions for the recovery of damages for personal injuries, or for pecuniary loss, are transitory in character, and arise out of the supposed violation of rights which, in legal contemplation, are neither local nor confined to the State where the right accrued. The further conclusion was arrived at, that, according to the weight of authority, as well as upon principle, the jurisdiction of courts to entertain actions or enforce rights which accrued in a foreign State did not depend upon whether the right sought to be enforced was of statutory or of common law origin, provided the right accrued under a statute similar in import and character to one in force in the jurisdiction in which the remedy was sought. Adhering to the conclusions there stated, it follows that the action was well brought in the court below.

The plaintiff's case proceeded upon the theory that his intestate's death was caused by the negligence of the railroad company in allowing one of its cars, with a defective brake, to be put into a train at Richmond, Indiana, of which the intestate was put in charge as conductor.

There was evidence tending to show that the latter went upon the car in the company's yard at Cincinnati, the brakemen being necessarily otherwise engaged at the time, and while attempting to control the movement of the car by the use of the brake, the handle to that appliance suddenly gave way, or slipped off, thereby causing the decedent to lose his balance and fall between the moving cars, one of which passed over his body, crushing him to death.

The theory of the appellant company was, that if the intestate's death was occasioned by the negligence of anyone, it was the fault of the car inspector at Richmond, Indiana, where the train was made up, and that the car inspector was a co-employee with the plaintiff's intestate. Hence, the insistence is, there can be no recovery, upon the principle that an employer is not liable to an employee for an injury occasioned by the negligence of a co-employee while both are engaged in a common service.

The instructions of the court relevant to that feature of the case were adverse to the appellant's view, and they are now made the subjects of complaint.

That one who engages in the service of a railroad company is presumed to be acquainted with, and to take upon himself, all the ordinary risks incident to the service, including the risks arising from the negligent conduct of co-employees, in whose selection and retention proper care has been exercised, is too well settled to admit of further discussion. It is also a well established rule that all those who are subject to the same general control, and are co-operating in the prosecution or accomplishment of the same general end and purpose, are, while engaged in the common pursuit, without regard to their relative rank, co-employees. Indiana Car Co. v. Parker, 100 Ind. 181; Atlas Engine Works v. Randall, 100 Ind. 293; Gormley v. Ohio, etc., R. W. Co., 72 Ind. 31; Brazil, etc., Coal Co. v. Cain, 98 Ind. 282.

It is, however, the duty of a railroad company to provide and maintain reasonably safe and suitable cars and other appliances for its employees to work with, and it can not escape liability to an employee, who, without fault or neglect on his part, suffers injury from the use of defective appliances or implements, by showing that the failure to discover and amend the defect was attributable to the neglect of an agent of the company to whom the duty of selecting and inspecting its cars and their appendages had been committed. An employee is required to observe and avoid all known or obvious perils, even though they may arise from defective machinery and appliances; but he is not bound to search for defects, or make a critical inspection of the appliances which are provided for his use. These are duties of the employer, who is required not only to furnish reasonably safe and suitable tools and machinery, but to exercise such a continuing supervision over them, by such reasonably careful and skilful inspection and repair, as will keep the implements which employees are required to use in such a condition as not unnecessarily to expose them to unknown and extraordinary hazards. Louisville, etc., R. W. Co. v. Buck, 116 Ind. 566, 19 N.E. 453, and cases cited.

Whoever is appointed or permitted to discharge duties which pertain to the station or function of employer, must, upon the plainest principles of reason and justice, be held to stand as the representative of the employer, and, in case injury results from his neglect, the latter must answer for his delinquency.

When the premise is conceded, that the duty to furnish reasonably safe and proper instrumentalities for the performance of the work required rests upon the employer, the conclusion logically follows that the consequences of a negligent failure to perform that duty must, no matter to whom it may have been committed, be visited upon the employer, and not upon the employee who suffered injury therefrom.

It can not be said that a car inspector, in the employment of a railroad company, upon whom is enjoined the duty of inspecting the company's cars, is a co-employee of a brakeman, or of one who is in the line of his service discharging the duties of brakeman, within the meaning of the common law rule which exempts a master from liability for injuries to a servant resulting from the negligence of a fellow-servant. Bushby v. New York, etc., R. R. Co., 107 N.Y. 374, 14 N.E. 407; Fay v. Minneapolis, etc., R. W. Co., 30 Minn. 231, 15 N.W. 241; Macy v. St. Paul, etc., R. R. Co., 35 Minn. 200, 28 N.W. 249; Condon v. Missouri Pacific R. W. Co., 78 Mo. 567; Missouri, etc., R. W. Co. v. Dwyer, 36 Kan. 58, 12 P. 352; King v. Ohio, etc., R. R. Co., 8 Am. & Eng. R. R. Cas. 119; Brann v. Chicago, etc., R. R. Co., 53 Iowa 595, 6 N.W. 5.

After a careful examination of the authorities, the rule applicable to the point under consideration was well stated in Northern Pacific R. R. Co. v. Herbert, 116 U.S. 642, 29 L.Ed. 755, 6 S.Ct. 590, in the following language: "If no one was appointed by the company to look after the condition of the cars, and see that the machinery and appliances used to move, and to stop them, were kept in...