The Louisville, Evansville and St. Louis Consolidated Railway Co. v. Hanning, Administrator

• Decision Date: 10 May 1892
• Docket Number: 15,750
• Citation: 31 N.E. 187,131 Ind. 528
• Parties: The Louisville, Evansville and St. Louis Consolidated Railway Company v. Hanning, Administrator
• Court: Indiana Supreme Court

31 N.E. 187

131 Ind. 528

The Louisville, Evansville and St. Louis Consolidated Railway Company v. Hanning, Administrator

No. 15,750

Supreme Court of Indiana

May 10, 1892

From the Dubois Circuit Court.

Judgment affirmed, with costs.

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

C. L Jewett, J. F. Tieman and H. C. Jewett, for appellee.

McBride J. Coffey, J., dissents.

OPINION

McBride, J.

This is an appeal from a judgment recovered by the appellee for the alleged negligent killing of her decedent, Henry A. Hanning, who was a car repairer, employed by the appellant in its repair shops at Huntingburg.

The appellant insists that the court erred in overruling a demurrer to the paragraph of complaint on which the case was tried.

Omitting prefatory averments, the complaint avers that, "In repairing defendant's cars, it was necessary for the person employed to do the same to work on top of, and around, and under said cars, and that to enable said employees, including plaintiff's intestate, to properly and safely perform their labor and duties, the defendant had established certain railroad tracks to be used as repair tracks, and commonly called shop tracks, over which tracks trains of cars were not run or switched. And plaintiff avers that when cars to be repaired were placed upon said tracks, the repairs could be made with safety to those engaged in making the same. The plaintiff avers that near said repair tracks, were certain other railroad tracks of the defendant, to wit, sidetracks, used for the running and switching of trains, and that it was dangerous and hazardous to attempt to repair cars while they were standing upon such side-tracks, without having certain signal flags so placed as to warn those engaged in running and switching trains not to run cars or locomotives over said side-tracks when cars were being repaired. But, when such signal flags were properly placed and displayed, cars could be repaired upon said side-tracks without danger. The plaintiff avers that in his said service and employment with the defendant, plaintiff's intestate undertook to work at repairing cars, when the same were placed upon said shop tracks, but did not agree, or undertake to repair cars when standing upon such side-tracks, or to subject himself to the dangers and hazards of so doing.

"The plaintiff further avers, that, on the 26th day of August, 1889, while the plaintiff's intestate, Henry A. Hanning, was in the service and employment of defendant as aforesaid, he was directed and required, by one M. Contant, the defendant's general foreman, to whose orders said Henry Hanning was then and there subject, to go to one of the side-tracks aforesaid, called side-track No. 1, and to there repair a certain flat-car then standing thereon; and, in obedience to said order, said Henry A. Hanning went to said side-track and proceeded to repair said car; that the nature of said repairs required the said Henry A. Hanning to go beneath one end of said car, and remain at work in a stooping position behind the trucks, with his back to the same, where he could not see or discover the approach of locomotives or cars upon said side-track. The plaintiff avers that it was the duty of defendant, and of said Contant, as said general foreman, to cause signal flags to be placed, to warn trainmen not to run cars or locomotives upon said side-track No. 1, while said Henry A. Hanning was at work under said flat car, and that he, Hanning, worked under said car, believing that defendant and said Contant had performed their duty in that regard, and placed said flags; but the plaintiff says that the defendant and said Contant negligently failed to place, or cause to be placed, any signal flag to prevent cars or locomotives from running upon said side-track; that while said Henry A. Hanning, in performance of his duty, was so at work under said flat car, and behind the trucks, and without any notice or warning to him whatever, and without his knowledge, the defendant caused a locomotive and train of cars to be run into, upon and over said side-track, and against said flat car, with great force and violence, whereby said car, and the trucks thereof, were run against and over said Henry A. Hanning, and he was crushed, injured and killed. The plaintiff avers that the injuries and death of said Henry A. Hanning were occasioned solely by the negligence of the defendant in failing to have any signal flag placed or displayed to prevent cars and locomotives from running on and over said side-track No. 1, and without any fault or negligence of said Henry A. Hanning," etc.

Counsel for the appellant, as we understand their contention, insist, in substance, that the legitimate inferences that must be drawn from the specific statement of the acts of the decedent overcome the general averment that he was without fault or negligence, and show that, notwithstanding, he was guilty of contributory negligence; that being directed to work in an unusual place, where he would be exposed to greater dangers, of which he had knowledge, he had no right to rely upon the presumption that others had done their duty, but that it was his duty to personally investigate and ascertain if the proper signals were in fact displayed, and the place in which he was directed to work thereby made safe.

No authority need be cited in support of the firmly settled rule requiring the master to use at least ordinary care to furnish to his employes a reasonably safe place to work. The term "safe place to work," as thus used, is, of course, necessarily relative. It does not mean a place absolutely free from danger, as some vocations from their very nature involve the constant encountering of danger.

The rule is equally well settled that a servant impliedly assumes all of the ordinary and usual risks incident to his service, so far as they are known to him, or so far as one of his age and experience ought, in the exercise of ordinary care, to be able to discern them, even where the duties of the service are necessarily hazardous. Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327, 27 N.E. 741, and authorities there cited.

If, however, the master requires of him a service outside of the duties ordinarily incident to his employment, and subjecting him to additional danger, he does not necessarily assume the additional hazard in undertaking to perform the unusual and extra service, even although the dangers attending it are obvious.

If the apparent danger is such that a person of ordinary prudence, exercising that prudence, would refuse to encounter it, the employee proceeds at his peril. Otherwise, he may undertake the service, using care proportioned to the apparent increased risk, and if, in so doing, he is injured by the employer's fault, he may recover for the injury. Brazil Block Coal Co. v. Hoodlet, supra.

Here a service was required of the decedent outside of the line of his employment, and at a place other than...