The Hoosier Stone Co. v. The Louisville, New Albany and Chicago Railway Co.
| Decision Date | 18 May 1892 |
| Docket Number | 15,352 |
| Citation | 31 N.E. 365,131 Ind. 575 |
| Parties | The Hoosier Stone Company v. The Louisville, New Albany and Chicago Railway Company |
| Court | Indiana Supreme Court |
From the Lawrence Circuit Court.
Judgment reversed.
M. F Dunn and G. G. Dunn, for appellant.
E. C Field and W. S. Kinnan, for appellee.
The material facts stated in the complaint of the appellant are these: The appellee is a railway company and the appellant is the owner of a stone quarry, and the former furnished to the latter a car for the transportation of heavy blocks of stone, knowing at the time of furnishing the car that the service of the latter required good and sufficient cars, and knowing, also, the grade of the track used by the latter, and that the nature of its business was such as to require sufficient brakes, brake cogs, ratchets and attachment. The railway company was under contract to furnish the appellant for the transportation of the products of its quarry such cars as were strong and amply sufficient for the purpose, and such as had been properly inspected. The railway company had in its service a car inspector whose duty it was to inspect the cars that were to be furnished the appellant and of this fact it had knowledge. The appellant, relying upon the fact that the railway company had performed its duty to inspect, received from it a platform car. The car so received by the appellant was broken and insufficient, and the brake thereon insufficient and defective. All this might have been discovered on proper inspection by the railway company, but it carelessly and negligently failed to inspect the car, and knowingly delivered the same at the appellant's quarry without inspection. The appellant believed the car to be safe and secure, the defect being hidden and unknown to it. The car, by reason of the defective and insufficient brake and brake attachment, and without any fault on the part of the appellant, broke loose, ran down a grade and against James McCain, one of appellant's employees, thereby causing his death. The appellee, through its general counsel and solicitor, for the purpose of avoiding its liability, represented the administrator of James McCain in an action brought by him against the appellant for damages resulting from the death of his intestate. In that action the administrator charged the appellant with being responsible for negligently killing the deceased. The appellant gave the appellee notice of the action, and that it would hold the appellee liable for all damages that might be recovered against it. The appellee refused to defend, and judgment was recovered against the appellant, although it defended the action and incurred expense in making a defence. It is averred of the accident to appellant's employee, that "All this was without any fault on this plaintiff's part, and wholly by reason of the wrongful and negligent acts and carelessness, in the manner hereinbefore set out, of the defendant."
It is argued by appellee's counsel that the ruling of the trial court adjudging the complaint bad is right, for the reason that the complaint does not show that James McCain was not guilty of contributory negligence. In our opinion the position assumed can not be maintained. The appellee having, as the complaint charges and the demurrer admits, represented the administrator in the action against the appellant, it is not in a situation to insist that the judgment recovered through its instrumentality is not valid because of the fault of the intestate of the plaintiff in the action in which the judgment was rendered. By representing the cause of the plaintiff in that action, and procuring for him a judgment, it affirmed that he had a right to recover, and this he could not have if his intestate had been guilty of contributory negligence, so that it effectively and necessarily asserted that there was no such negligence on his part. Having impliedly asserted that there was no contributory negligence, and having conducted the action to avoid liability on its own part, and having secured a judgment for the administrator upon that assertion, it can not now be heard to say that the appellant can not recover because it does not aver that McCain was free from contributory fault. It is to be borne in mind that the allegations of the complaint that McCain's death was caused "without any fault of the appellant, and wholly by reason of the negligence" of the appellee, are confessed by the demurrer and these allegations, taken in connection with the averments concerning the judgment against the appellant and the part taken by the appellee in prosecuting the action in which that judgment was rendered, are sufficient without anything more to preclude the appellee from successfully asserting that the complaint is bad, for the reason that it does not specifically allege that McCain was free from contributory fault. The conduct of the appellee worked an estoppel, for it can not occupy contradictory positions. We do not put our conclusion upon the judgment, but upon the conduct of the appellee, who was the original wrong-doer. What we have said disposes of the argument of appellee's counsel in support of the ruling below, for the entire argument is based upon the single proposition that the ruling is right, because the complaint does not allege that McCain was not guilty of contributory negligence. There are, however, other reasons why the position of the appellee can not be sustained. As we shall presently show, the right of recovery against the appellee is not for the breach of duty upon which McCain's administrator recovered, but for a breach of a different duty. The duty which the complaint charges the appellee with violating was owing directly to the appellant.
It was undoubtedly the duty of the appellee to use due care and skill in inspecting the car furnished the appellant. A carrier is under a duty to exercise care, skill and diligence to provide those for whom it undertakes to transport property with safe cars and appliances. The complaint shows a clear and inexcusable breach of this duty. If substantial damages can be said to be the proximate result of this breach of duty there is a right of recovery. If the negligent breach of duty by the carrier had caused direct injury to the appellant, the case would be free from difficulty. If, for instance, the car had broken away and run against a building of the appellants thus destroying it, no one would doubt that the appellee would be liable for all damages resulting from the breach of duty. The only doubt that can possibly arise in the case upon the admitted facts is as to whether substantial damages can be recovered.
That there was a clear breach of duty on the part of the appellee in negligently failing to do what its duty as a carrier required it to do is beyond controversy, and it is quite as certain that the duty which it violated was one owing to the appellant for whom it undertook to...
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