The Madison & Indianapolis Railroad Co. v. Bacon

• Decision Date: 29 May 1855
• Citation: 6 Ind. 165
• Parties: The Madison and Indianapolis Railroad Company v. Bacon
• Court: Indiana Supreme Court

6 Ind. 165

The Madison and Indianapolis Railroad Company v. Bacon

Supreme Court of Indiana

May 29, 1855

From the Marion Circuit Court.

The judgment is reversed with costs. Cause remanded.

J. G Marshall, W. M. Dunn and S. Yandes, for appellant.

D Wallace, E. Coburn and W. Wallace, for appellee.

Perkins J. Stuart, J., dissented.

OPINION

Perkins J.

Suit by Euphemia W. Bacon, as the widow of Horace Bacon, deceased, against the Madison and Indianapolis Railroad Company, to recover damages for the loss of her husband, killed on said road while traveling, she alleges in her declaration, as a passenger in the car of the company. The seventh defense set up in the answer of the company alleges, that Bacon was not a passenger, but a servant of the company, and that the accident by which he lost his life happened through the negligence of his fellow servants acting with him in the management of the train. The plaintiff demurred to this paragraph of the answer, the Court sustained the demurrer, and, as to this defense, the plaintiff had judgment.

Other defenses were put in, issues were formed upon them and tried, and the plaintiff recovered a verdict and judgment for 3,000 dollars.

None of the issues tried covered the seventh ground of defense; and the ruling of the Court in sustaining a demurrer to that, presents, therefore, to this Court, the question, whether a principal is liable to one of his servants for injuries sustained through the negligence of another servant, when both are engaged in the same business. This broad general question was left undecided in Gillenwater v. Madison, &c. R. Co., 5 Ind. 339, though some of the qualifications to which it must necessarily be subject were there pointed out. With those we have here nothing to do. The present case presents but the general proposition, and upon it the authorities are almost concurrent. They decide that the principal is not, under such circumstances, liable. The question was first raised, and thus decided, in the English Court of Exchequer, in 1837. The same principle was affirmed by the Court of Appeals in South Carolina, in 1841. Subsequently, also, it was affirmed in the Supreme Court of Massachusetts; and, in 1846, it received the sanction of the Supreme Court of Georgia, in Scudder v. Woodbridge, 1 Ga. 195. Lumpkin, J., in delivering what appears to be the unanimous decision of the Court, says, the general doctrine "is distinctly laid down in Story on Agency, and other elementary writers, and fully sanctioned by the adjudications adduced from South Carolina, Massachusetts, New York and England. Murray v. S. C. R. R. Co., 1 McMullen's Law 385.--Farwell v. Boston, &c. Corporation, 4 Met. 49.-- Brown v. Maxwell, 6 Hill 592.-- Priestly v. Fowler, 3 M. and W. 1. And we are disposed to recognize and adopt it, with the cautious limitations and restrictions in those cases." The Court, however, held that the doctrine did not apply to cases where slaves were the servants, but only where they were free white agents.

In 1851, the principle of the above decisions received the unanimous approval of the Court of Appeals in New York. Coon v. Syracuse, &c. R. Co., 5 N.Y. 492. It has been reaffirmed in Massachusetts; Hayes v. Western Railroad, 3 Cush. 270; and repeatedly by the English Exchequer, the adjudication upon the question in that Court that has last come to our notice being in 1854. Skip v. Eastern Counties R. Co., 24 E. L. & E. 396. In that case, the previous decisions are cited; but no case appears in which the doctrine has been controverted. We may well conclude, therefore, that no Court in England has questioned it. The Courts in Scotland hold differently, but that country is governed mainly by the civil, not the common law, and the decisions of her Courts are not authority here.

The editors of the American Railway Cases, vol. 1, p. 569, assert that the Supreme Court of Ohio in Little Miami R Co. v. Stevens, 20 Ohio 415, have rejected this doctrine; but they are mistaken. The Supreme Court of Ohio was, at that time, composed of four judges. Three of them delivered opinions in the case. Judge Spaulding, in his, endorsed to the fullest extent the cases cited above, and said--"If these authorities, in both England and the states of this Union, do not establish and settle this question, then I think it can not be settled by authority;...