The Louisville, New Albany And Chicago Railway Co. v. Frawley

• Decision Date: 22 December 1886
• Docket Number: 12,244
• Parties: The Louisville, New Albany and Chicago Railway Company v. Frawley
• Court: Indiana Supreme Court

9 N.E. 594

110 Ind. 18

The Louisville, New Albany and Chicago Railway Company v. Frawley

No. 12,244

Supreme Court of Indiana

December 22, 1886

Petition for a Rehearing Overruled April 2, 1887.

From the Tippecanoe Circuit Court.

The judgment is affirmed, with costs.

G. W Easley, G. W. Friedley and W. H. Russell, for appellant.

B. W Langdon, T. F. Gaylord, J. R. Coffroth and T. A. Stuart, for appellee.

OPINION

Mitchell, J.

Frawley brought this suit against the railway company to recover damages for an injury alleged to have been sustained by him while in the company's service, through its negligent omission of duty.

The complaint was in three paragraphs, but the state of the record is such that we are required to consider only the third paragraph, and determine whether or not it states facts sufficient to constitute a cause of action.

The averments of this paragraph, so far as they are material to be stated here, are, that prior to the 8th day of December, 1883, Frawley had been in the company's service, for a period of two or three days, and had been engaged in throwing switches, coupling freight cars, and giving signals in the defendant's yards in the city of Lafayette. It is averred that coupling cars which are equipped with what are commonly called "double deadwoods" is attended with more hazard to the person making such coupling than is the coupling of those supplied with single deadwoods, the latter being the kind ordinarily used by the defendant on its road.

On the 8th day of December, 1883, the plaintiff entered the company's service in the capacity of brakeman on one of its freight trains. At the time of his employment he was a minor, of immature judgment and experience, and was ignorant of, and uninstructed in respect to, the difference between double and single deadwoods, or the hazard attending the act of coupling cars constructed with double deadwoods. It is averred that the defendant knew, or by the exercise of proper care might have known, that the plaintiff was of immature judgment and without experience and ignorant in the respect above mentioned.

While thus in the company's service, to wit, on Sunday, the 9th day of December, 1883, in attempting, in obedience to the order of the conductor in charge of the train, upon which the plaintiff was a brakeman, to couple an engine and freight car, both of which were furnished with double deadwoods, the plaintiff's hands were, without any fault on his part, caught and crushed between the deadwoods of the engine and car as they were brought together to be coupled. The injury is described as being of great severity, rendering necessary the amputation of some of the fingers on each hand, thus producing a permanent disability. The plaintiff lacked about two months of being nineteen years old at the time of the injury.

The ruling of the court below in overruling the demurrer to this complaint is assailed upon the ground that the facts therein alleged do not take the case out of the rule that an employee assumes the risks of the service in which he engages, and also those risks which are apparent to ordinary observation. The argument is, that notwithstanding the averment that the plaintiff was ignorant of, and had never been instructed in respect to, the difference of construction of cars and engines with double deadwoods, or the hazard of coupling them, since such difference was obvious to the senses of any person of ordinary intelligence, it was essential, in order to make the complaint sufficient, that the plaintiff should have stated some reason why he did not know or appreciate the danger of putting his hands between the deadwoods on the engine and those on the car against which the engine was propelled.

The rule is too well settled to be longer open to discussion, that when a servant enters upon employment which is from its nature necessarily hazardous, he assumes the usual risks and perils of the service, and this is especially so as to all those risks which require only the exercise of ordinary observation to make them apparent. Atlas Engine Works v. Randall, 100 Ind. 293 (50 Am. R. 798); Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187.

In such a case, there is held to be an implied contract on the part of the employee to take all the risks fairly incident to the service, and to waive any right of action against the employer for injuries resulting from such risks. Beach Contrib. Neg., section 8.

This implied contract and waiver include, on the one hand, all such risks and injuries as the employer, by the exercise of reasonable care and diligence in the performance of those duties which pertain to his position, could not reasonably have become aware of and provided against, and, on the other, such as the employee from the nature of the business, as usually and ordinarily conducted, must have known, when he embarked in the service, were incident thereto, as also those which the exercise of his opportunities for inspection, while giving diligent attention to such service, would have disclosed to him.

Where the defect or injurious contrivance is equally known to, or alike open to the observation of, both employer and employee, both are upon common ground, and the employer is not liable for resulting injury. Porter v. Hannibal, etc., R. R. Co., 71 Mo. 66 (36 Am. R. 454); Beach Con. Neg., section 140.

The severity of the principles above stated is relaxed measurably in favor of employees, in case the defect or danger is such as is not open to observation or ordinary inspection, or in case the employee, on account of immaturity, or for any other reason, is known to be not of sufficient capacity or experience to appreciate the danger, or to know how to perform the required service, and yet avoid the obvious hazard. Pittsburgh, etc., R. W. Co. v. Adams, supra.

In Atlas Engine Works v. Randall, supra, speaking on this subject, the court says: "Where an inexperienced servant is required to perform a hazardous service, in the performance of which extraordinary caution or peculiar skill is required, in order to enable him to avoid dangers which may be apparent, it may be a question for a jury to determine whether, under all the circumstances, the master gave sufficient caution of the danger or adequate information of the means necessary to avoid it."

So, in Sullivan v. India Manfg. Co., 113 Mass. 396, the court employs this pertinent language: "It may frequently happen that the dangers of a particular position for, or mode of doing work, are great, and apparent to persons of capacity and knowledge of the subject, and yet a party from youth, inexperience, ignorance, or general want of capacity may fail to appreciate them. It would be a breach of duty on the part of a master to expose a servant of this character, even with his own consent, to such dangers, unless with instructions or cautions sufficient to enable him to comprehend them, and to do his work safely, with proper care on his part. It was therefore competent for the plaintiff to show that there had been such a breach of duty on the part of the defendants, and although he had in fact gone to work in the place pointed out, assenting so to do, yet that he was incapable of appreciating the dangers to which he exposed himself, or of doing the work safely without instructions or cautions which he did not receive."

It can not be doubted, that a service which involves obvious danger may be performed in comparative safety by one who has had adequate experience, or sufficient instruction, while the same service would be attended with almost certain injury if attempted by one who had neither experience nor instruction.

In such a case, the employer, who, with knowledge of the want of experience of an employee, nevertheless, without instruction or warning, exacts from him a service which requires the observance of extraordinary caution or the exercise of peculiar skill in order that an apparent danger may be avoided, may, depending on the extent of the incapacity of the employee, the nature of the service required, and all the other circumstances of the case, be liable for an injury sustained. Parkhurst v. Johnson, 50 Mich. 70 (45 Am. R. 28, 15 N.W. 107); O'Connor v. Adams, 120 Mass. 427; Coombs v. New Bedford Cordage Co., 102 Mass. 572 (3 Am. R. 506); Ryan v. Tarbox, 135 Mass. 207; Wheeler v. Wason Manfg. Co., 135 Mass. 294; Dowling v. Allen & Co., 74 Mo. 13 (41 Am. R. 298).

The complaint before us makes a case in which it appears that the ordinary hazard of coupling cars on the appellant's railroad was such as was incident to coupling those supplied with single deadwoods. Coupling cars furnished with double deadwoods was extraordinarily hazardous, especially to a person unacquainted with the difference between such contrivances. To this service the plaintiff, of known inexperience, was set, without instructions or warning. The result was the injury complained of.

In Grizzle v. Frost, 3 Fost. & Fin. 622, Cockburn, C. J., says: "If the owners of dangerous machinery, by their foreman, employ a young person about it quite inexperienced in its use, either without proper directions as to its use or with directions which are improper and which are likely to lead to danger, of which the young person is not aware, and of which they are aware; as it is their duty to take reasonable care to avert such danger, they are responsible for any injury which may ensue from the use of such machinery."

The rule contended for by the appellant, that the employee impliedly assumes the risks of the service, and of such dangers as are obvious and open to ordinary observation, does not embrace such risks as the employer knows, or which by the exercise of reasonable care he might have known,...