The Evansville And Terre Haute Railroad Company v. Duel

• Decision Date: 15 February 1893
• Docket Number: 16,183
• Citation: 33 N.E. 355,134 Ind. 156
• Parties: The Evansville and Terre Haute Railroad Company v. Duel
• Court: Indiana Supreme Court

33 N.E. 355

134 Ind. 156

The Evansville and Terre Haute Railroad Company v. Duel

No. 16,183

Supreme Court of Indiana

February 15, 1893

Petition for a Rehearing Overruled April 19, 1893.

From the Vanderburgh Superior Court.

The cause is reversed, with instructions to the lower court to sustain the demurrer to each paragraph of the amended complaint.

J. E Iglehart and E. Taylor, for appellant.

J Brownlee and W. H. Gudgel, for appellee.

OPINION

Hackney, J.

The appellee sued the appellant for personal injuries received on the 6th day of January, 1890, while coupling two cars in the switching yards of the appellant at Evansville.

It is alleged that the appellant "then and there carelessly and negligently used, operated, and ran in said switching yard a certain defective, unsafe, and dangerous steam switching engine or locomotive, * * * in this, to wit, that the throttle valve which let in and cut off the steam from the cylinders of said engine was so defective or out of repair that at times said throttle would suddenly fly open and thereby cause said engine to move suddenly and swiftly."

It is further alleged, that the appellee was wholly ignorant of the defective and dangerous condition of said engine; that, while in the line of his duty, attempting to couple a car being moved by said engine to another car standing still upon the track, and when said moving car was very close to said standing car, and was approaching slowly, the throttle of said engine, owing to said defective condition, suddenly flew open and caused said moving car to come suddenly and swiftly against said standing car, catching and mangling his hands; that in all things he acted with care, and that the injury was caused "wholly through the fault and negligence of the defendant, in carelessly and negligently using said unsafe and defective engine."

The second paragraph of the amended complaint differs from the first only in the description of the defect in the engine and in the manner of its use.

A demurrer was overruled to each of the paragraphs of complaint, to which ruling the appellant reserved exceptions, and now urges two objections against either paragraph:

First. That there is no allegation that the company knew of the defective condition of the engine; and,

Second. That it should have been alleged that the plaintiff could not, by the use of ordinary care, have discovered the defect.

It is now so well settled as to stand without further question that the master must use reasonable care to provide his employees with reasonably safe working places and appliances, and competent persons for the service in which he engages them. Louisville, etc., R. W. Co. v. Corps, 124 Ind. 427, 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, 22 N.E. 876; Cincinnati, etc., R. W. Co. v. Lang, Admx., 118 Ind. 579, 21 N.E. 317; Indiana Car Co. v. Parker, 100 Ind. 181; Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88, 3 N.E. 627; Krueger, Admr., v. Louisville, etc., R. W. Co., 111 Ind. 51, 11 N.E. 957; Pennsylvania Co. v. Whitcomb, Admr., 111 Ind. 212, 12 N.E. 380; Louisville, etc., R. W. Co. v. Wright, 115 Ind. 378, 16 N.E. 145; Louisville, etc., R. W. Co. v. Buck, Admr., 116 Ind. 566, 19 N.E. 453.

It is not every neglect of this duty that will subject the master to an action for damages, for the servant owes to his master and to his co-employees duties, the violation of which precludes a recovery. Reasonable care in the performance of his duties with respect to the care and the safety of the master's property, the safety of co-employees and of those, by reason of his employment, dependent upon a faithful discharge of his duties, is enjoined. The important rights of persons and property, to be affected by his care, have secured the rule that without vigilance on his part he is deprived of remedy.

Another rule, now firmly established, is that where the servant knows of the defect in the machinery, or the danger in the place where he is working, or of the want of skill of fellow-servants, and, with such knowledge, voluntarily continues in such employment, he thereby exonerates the master from liability and is held to have assumed the risks incident to such defects, dangers, or want of skill. Louisville, etc., R. W. Co. v. Sandford, Admx., 117 Ind. 265, 19 N.E. 770; Louisville, etc., R. W. Co. v. Corps, supra; Brazil, etc., Co. v. Young, 117 Ind. 520, 20 N.E. 423; 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.

Out of this rule has necessarily grown the conclusion that the action for a violation of the employer's duty involves more than mere negligence and contributory negligence, and includes a denial of the assumption of the hazard. Louisville, etc., R. R. Co. v. Corps, supra. It follows that a complaint, in such an action as this, must allege not only the violation of the master's duties but such performance of his own duties as that it may appear that he has not been negligent in contributing to his injury, and that he has not assumed the risks incident to the defects or want of skill of which he complains.

Owing the master a duty in protecting his property, and being charged with the safety of fellow-servants, of travelers, and of the property of shippers, the railway operative knowing of defects in machinery, or want of skill in fellow-servants, is derelict in not advising his master that investigation and repairs of machinery, or the discharge of the unfaithful, may follow for the safety of all concerned. Wood Master and Servant, 422; Lake Shore, etc., R. W. Co. v. Stupak, supra, and authorities cited, p. 6.

These special rules must find observance by the pleader who seeks damages for their violation on the one side and their performance on the other. It was said by this court in Louisville, etc., R. W. Co. v. Sandford, Admx., supra, that "all of the authorities agree that negligence on the part of the employer is not to be presumed, and that it rests on the plaintiff to aver and prove every fact essential to the existence of actionable negligence. Riest v. City of Goshen, 42 Ind. 339; Pennsylvania Co. v. Whitcomb, supra; Summerhays v. Kansas Pacific, etc., R. W. Co., 2 Colo. 484; Mobile, etc., R. R. Co. v. Thomas, 42 Ala. 672; State v. Philadelphia, etc., R. R. Co., 60 Md. 555; Davis v. Detroit, etc., R. R. Co., 20 Mich. 105; The Gladiolus, 21 F. 417; Cummings v. National Furnace Co., 60 Wis. 603, 18 N.W. 742; Belair v. Chicago, etc., R. R. Co., 43 Iowa 662." In the same case, at page 267, it is said: "The plaintiff in such a case is the actor, and must show a complete cause of action, and, to do this, he must aver facts showing that the danger which augmented the risks of his service was not known to him. In at least two cases this court has explicitly affirmed this doctrine. 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."

Our attention has not been directed to any case holding that as against the assumption of the risks flowing from the defect complained of, it is necessary to allege more than a want of knowledge of the existence of such defects. In many cases it is said that the pleader must show that he had not such knowledge or the means equally with the employer of knowing it. But we feel safe in asserting that no authority holds that he must allege that he did not know of the defect, and that he could not have known of it by the use of ordinary care and prudence. There are numerous cases, in this State, holding complaints insufficient where, notwithstanding the allegation of a want of knowledge, it was apparent from the facts alleged that the plaintiff had an equal opportunity with the employer to have known it, or where the conclusion was irresistible that he did know it or by casual observation he could have known it. But to require the allegation that he did not know, should be sufficient not only to rebut actual knowledge but to repel any imputed knowledge. In Lake Shore, etc., R. W. Co. v. Stupak, 123 Ind. 210, 23 N.E. 246, it was expressly held sufficient to allege a want of knowledge of the defect or want of skill.

With reference to the allegation that the master knew of the defect or want of skill, it would seem to have been recognized as a requirement of the pleader, from a very early period in this State to the present time, with but one exception to which our attention has been called.

In Indianapolis, etc., R. R. Co. v. Love, 10 Ind. 554, it is said "That the complaint is insufficient, if for no other reason, because of the want of an allegation of negligence or want of care upon the part of the company in the construction of the road, or that they had knowledge or notice of its imperfection, and notwithstanding continued to use it, or some averment equivalent to such charge of negligence."

The same principle is distinctly recognized not only as a rule of pleading, but as one of evidence, in Columbus, etc., R W. Co. v. Arnold, Admr., 31 Ind. 174. In Pittsburgh, etc., R. W. Co. v. Ruby, 38 Ind. 294, proof of notice was recognized as necessary to a recovery against the master. In Brazil, etc., Co. v. Cain, 98 Ind. 282, the court says of the plaintiff: "She failed to allege either that the appellant had not exercised ordinary care and prudence in the employment of Hopkins, or that it had retained him in its employment after it had received notice that he was careless and negligent in the discharge of the duties of his position. In the absence, and for the want, of...