The Lake Shore and Michigan Southern Railroad v. Wilson

• Decision Date: 10 October 1894
• Docket Number: 1,129
• Citation: 38 N.E. 343,11 Ind.App. 488
• Parties: THE LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD COMPANY v. WILSON, ADMINISTRATRIX
• Court: Indiana Appellate Court

38 N.E. 343

11 Ind.App. 488

THE LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD COMPANY v. WILSON, ADMINISTRATRIX

No. 1,129

Court of Appeals of Indiana

October 10, 1894

Petition for a rehearing overruled Dec. 11, 1894.

From the DeKalb Circuit Court.

Judgment affirmed.

J Morris, R. C. Bell, J. M. Barnett and S. L. Morris, for appellant.

L. M Ninde, W. L. Penfield and H. W. Ninde, for appellee.

DAVIS J. ROSS, J., dissents.

OPINION

DAVIS, J.

George R. Wilson was a fireman in the service of the appellant on a passenger train. The appellant, on the 6th day of December, 1889, at the station of Dune Park, negligently, in the evening, left the switch open, and thereby caused the train upon which he was firing to run off the main track onto the side track, whereby said passenger train collided with a freight train standing thereon, and instantly killed said fireman without fault on his part. The appellee recovered judgment in the court below for two thousand dollars.

The lamp provided for this switch was duly lighted and placed in position on this evening, as a signal that the switch was closed and locked, but the light accidentally went out an hour and a half before the passenger train reached this point.

It was provided by the rules of the company that the absence of a light at the switch should be regarded as a signal of danger. The engineer in charge of the passenger train was familiar with the rule and also saw when within a half mile of the switch that the light was out, or, rather, he failed to see any light there.

It is, therefore, contended by counsel for appellant that the engineer was negligent under the circumstances in failing to stop the passenger train, and that his negligence was the proximate cause of the injury, and that the negligence of appellant in leaving the switch open was a remote cause. In this connection it is proper to suggest that if we understand the record it appears that if the lamp which was lighted and placed on the switch as a signal of safety had not accidentally gone out that night before the arrival of the passenger train, the collision and wreck, which occurred on the switch track, would not only have been invited, but would have been inevitable. Therefore, the question is suggested whether the fact that the engineer failed to stop the passenger train on the occasion constituted an efficient and direct cause of the injury, and whether such cause, under the circumstances, was the independent wrongful act of a responsible third person. In other words, does it conclusively appear that this omission of the engineer was wrongful, and that such act was an intermediate and efficient cause disconnected from the primary act of negligence on the part of appellant and self-operating, which produced the injury. New York, etc., R. R. Co. v. Perriguey, 138 Ind. 414; Pennsylvania Co. v. Congdon, 134 Ind. 226, 33 N.E. 795.

In Coppins v. New York, etc., R. R. Co., 122 N.Y. 557, 25 N.E. 915, s. c. 19 Am. St. R. 523, the facts were substantially that the train on which Coppine was employed as a brakeman was derailed by reason of a misplaced switch, and he was seriously injured. Martin Schrom was an employe of the company, and it was his duty to shift and close the switches. He negligently left the switch open. The Court of Appeals in the discussion of the question presented says: "If the evidence in the case justifies the conclusion that the engineer of the passenger train was negligent in not observing the target at the misplaced switch, or in running his train at a high rate of speed past the station in the absence of signals that the track was safe, that fact of itself is not available as a defence, if the negligence was established on the part of the defendant." See, also, Stringham v. Stewart, 100 N.Y. 516, 3 N.E. 575.

In the Perriguey case, supra, Judge HOWARD says: "If the negligence of the employer sets a cause in motion which continues until, in the end, it becomes a constituent element in bringing about the injury, so that the injury would not have occurred without the negligence of the employer; then, although the negligence of co-employes or other third persons may have contributed to the final result, yet the original negligence, still active to the end, is, in law, a proximate cause of the injury." See Grand Trunk R. W. Co. v. Cummings, 106 U.S. 700, 27 L.Ed. 266, 1 S.Ct. 493.

In discussing the question of proximate cause in Ohio, etc., R. W. Co. v. Trowbridge, 126 Ind. 391, 26 N.E. 64, Judge ELLIOTT says: "The principle underlying this doctrine is that there must be some connection between the effect and the cause--between the injury and the wrong. It is not necessary, however, that there should be a direct connection between the wrong and the injury; it is enough if it appears that but for the wrong no injury would have occurred, and that the injury was one which might have been anticipated. Louisville, etc., R. W. Co. v. Nitsche, ante, p. 229; Milwaukee, etc., R. W. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256. It is, indeed, not necessary that the precise injury which, in fact, did occur should have been foreseen; it is sufficient if it was to be reasonably expected that injury might occur to some person engaged in exercising a legal right in an ordinarily careful manner."

In Cincinnati, etc., R. W. Co. v. Lang, Admx., 118 Ind. 579, 21 N.E. 317, the court says: "If the master's negligence is the principal cause of the injury, then he will not be absolved from liability, although the negligence of a fellow-servant may have concurred in causing the injury."

In Pennsylvania Co. v. Burgett, 7 Ind.App. 338, 33 N.E. 914, this court said: "The general rule is that where a servant receives an injury occasioned, in part, by the negligence of the master and in part by the negligence of a co-employe, the servant, if without fault on his part, may maintain an action against the master for such injury."

Counsel for appellant in this case concede that where the negligence of the master and his servant concur in producing an injury to another servant, the concurring negligence of the coservant will not relieve the master from liability, but their contention is that "Bickle's negligence was the immediate, sole, and proximate cause of the injury complained of."

Bickle was the engineer in charge of the passenger train.

Counsel say: "Could the leaving of the switch at Dune Park open by Demsky have caused the death of Wilson, had Bickle stopped when he discovered that the switch light was out, and not proceeded further until he learned that the switch was closed, or, if open, until he closed it?"

Again: "In the case in hearing, the death of Wilson was not directly attributable to the negligence of Demsky. It was the independent negligence of Bickle that made Demsky's negligence injuriously fatal to Wilson."

Counsel contend that the Perriguey case supra supports their position and is decisive of this case. The opinion in that case is founded upon the proposition that the engine in charge of Ferris was furnished with two good and sufficient hand lamps as a substitute for the regulation headlight, and that it was the duty of the engineer to light the headlight, whether it was the regulation light or the substitute hand lamps; and that the engineer failed in his duty to light the lamps; and that the proximate cause of the injury to Perriguey was the negligence of the engineer in failing to light the hand lamps.

Judge HACKNEY says: "In the present case the defect in the lamp of the headlight was a condition: the cause of the collision was the absence of the light. The absence of that light was not the defect, but was the failure of Ferris to light the hand lamps and place them in the headlight, from which the presence of his engine could be seen for the distance of five miles and the collision averted."

In considering the opinions of courts, it is well to bear in mind the observations of Chief Justice Marshall: "It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles, which may seem to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257.

Again he says: "The positive authority of a decision is coextensive only with the facts on which it is made." Ogden v. Saunders, 12 Wheat. *333.

The value as precedents of the cases hereinbefore cited, in the decision of the question before us, should be measured by the rule above stated. It is not always easy to determine what is the proximate cause of an injury. As Judge HACKNEY well says in the Perriguey case supra: "Cases may illustrate, but definitions are not sufficiently explicit for practical application."

The general principles of the law in relation to proximate and remote causes, in actions growing out of negligence, are stated in the cases cited and are abundantly supported by the authorities to which reference is therein made.

In the light of these principles, was the negligent act of appellant the proximate cause of Wilson's injury? We should not, in the language of Judge HACKNEY, in determining this question, "predicate our decision upon a shadow while abandoning the substance." 138 Ind. 414, supra.

The rule of appellant, requiring a light at night at the switch,...