The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Ropp

• Decision Date: 25 January 1921
• Docket Number: 23,397
• Citation: 129 N.E. 475,190 Ind. 115
• Parties: The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Ropp
• Court: Indiana Supreme Court

129 N.E. 475

190 Ind. 115

The Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Ropp

No. 23,397

Supreme Court of Indiana

January 25, 1921

From Johnson Circuit Court; W. E. Deupree, Judge.

Action by Joseph Ropp against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for the plaintiff the defendant appeals.

Reversed.

Isaac Carter and Miller & White, for plaintiff.

Ed K Adams and Herbert C. Jones, for appellee.

OPINION

Townsend, J.

Appellee recovered a judgment against appellant for personal injuries.

Appellant claims error in overruling its motion for a new trial. The questions are: (1) Sufficiency of evidence; (2) erroneous instructions; (3) whether the federal or state Employers' Liability Act applies.

The complaint is drawn to invoke either the state or federal Employers' Liability Act, according to the exigencies of the evidence.

We will first give a brief summary of the evidence.

Appellant has an interstate line of railroad. It maintains and operates machine and repair shops at Beech Grove, Marion county Indiana, where the business of constructing and repairing engines and cars is carried on. It employs in these shops a large number of men.

The particular department in which appellee was working at the time of his injury had to do with taking old tires from locomotive drive wheels. The method by which this was done was to place upon a jack for that purpose two locomotive drive wheels attached to the axle. There was a groove in the top of this jack in which the axle rested, the two wheels being on the outside of the jack. Blocks and scantling were furnished to the appellee to fix the wheels so that they would not turn. One scantling was blocked in the lower part of the wheel to prevent turning, and another 4"x4" oak scantling eight feet long was blocked against the upper rim of the wheels. When this latter scantling was so blocked, it projected fourteen or fifteen inches beyond the rim. The projection was to receive the tire when driven from the wheel. After the wheels were thus blocked, there was applied to the wheel a perforated pipe conforming to the tire, which pipe was connected to an oil tank. The oil flowing from the perforations was ignited. The tire thus heated and expanded was driven off by sledges. After the tire had been sufficiently heated, so that it would start by tapping it with a sledge, the heating apparatus was removed and the tire driven from the wheel by two persons, one on each side, standing back of the wheel and driving out, the purpose being to have the tire fall upon the projecting scantling. When the tire fell upon this scantling, the under part of it was several inches from the floor.

Appellee had been removing tires by this method for eighteen months previous to his injury. This method of removing tires had been used in these shops for at least nine years.

On the day of the accident in question, a tire was driven from a locomotive wheel by appellee and another employe of the company. This tire came to rest on the projecting scantling. Appellee stood by the tire for some appreciable time after it came to rest. He then walked about sixty feet to a hydrant to get a drink. Returning, he observed a fire in the sawdust on the floor and passed by where the tire was hanging to get a bucket of water to throw on the fire. While he was in the act of reaching for the bucket, for some unaccountable reason, the tire fell from the scantling. Or, as appellee puts it, it stood upon the floor and rolled over towards him like a hoop, and fell upon his right ankle, crushing it and necessitating amputation.

Appellee says that this particular tire, which was six inches wide, came to rest upon the projecting scantling about one inch from the rim of the wheel. He also says that the scantling projected about fourteen or fifteen inches beyond the rim. He also says that this 4"x4" oak scantling was in good condition, the corners of it square, and the ends not burnt off; that there were no defects in it. He also admits that, if there were any defects in the scantling, or blocks, or gluts, he could get new ones; that he was so instructed; that he had frequently done so. He says that these particular wheels were properly blocked by him, so that they could not turn, and this scantling, which received this tire, was level.

The evidence shows, and the jury found by answers to special interrogatories, that no tire ever fell from a scantling after it had been driven from a wheel and came to rest. The evidence shows and the jury specially found by answers to special interrogatories that neither appellant nor appellee had reason to know that a tire ever would fall from a scantling after it came to rest. If appellant did not know that there was any danger, under these conditions, then it was not guilty of any negligence, and the verdict is not sustained by sufficient evidence. Indeed, it is difficult to see how there could be a finding for the appellee in this case, under the evidence, in light of the fact that the jury specially found that the appellant did not have reason to know that such an accident could happen. The most appellant was required to do was to use the care that ordinarily prudent men would exercise in like circumstances.

Now the negligence charged is the failure to furnish a scantling with a barrier or obstruction on the end thereof to keep a tire from slipping off. But there is no evidence that any different appliances than those here used are commonly employed by men in like work. Indeed, it is difficult to see what could have kept this particular tire on that scantling. It came to rest one inch from the rim. It stayed there several minutes. It had seven or eight inches of square scantling projecting beyond it. The scantling was level. The tire weighed 1,000 pounds. The wheels did not turn. This tire must have been animated.

Instructions Nos. 1 and 2 requested by appellee and given by the court are as follows:

"No 1. In this State it is and for more than two years has been the duty of all persons or corporations engaged in the care, operation and management of any business of whatsoever kind to see and to require that all appliances, tools and contrivances and everything whatsoever used therein are carefully selected, inspected and tested, so as to detect and exclude defects and dangerous conditions, and it is also their duty to see and require that all machinery, appliances, tools, machines and contrivances used in such business are amply, adequately and properly constructed to bear all weight and adapted to and perform the services and meet the requirements for which they are designed or used with safety, and that they are properly and safely maintained.

"No 2. It is the law in this state and has been for more than two years last past, and it is the duty of all owners, operators and managers, and all other persons having charge of, or responsible for, any work, mechanism, machinery, appliance, building means, employment or business of whatsoever nature involving risk or danger to...