The New York, Chicago and St. Louis Railroad Company v. Perriguey

• Decision Date: 19 June 1894
• Docket Number: 16,224
• Citation: 37 N.E. 976,138 Ind. 414
• Parties: The New York, Chicago and St. Louis Railroad Company v. Perriguey
• Court: Indiana Supreme Court

37 N.E. 976

138 Ind. 414

The New York, Chicago and St. Louis Railroad Company v. Perriguey

No. 16,224

Supreme Court of Indiana

June 19, 1894

Original Opinion of May 19, 1893, Reported at: 138 Ind. 414.

Hackney J. Howard, J.

OPINION

Hackney, J.

A petition for a rehearing has been presented by elaborate and able briefs, and we have given it our most careful consideration.

If we could believe, as counsel seem to believe, that the rule of this case would destroy the obligation of the master to supply the servant with safe appliances for the service in which he is engaged, we would unhesitatingly uphold that obligation. But when the master can say, as the jury have found in this case, that he has supplied a headlight which if burning, could have been seen the distance of five miles, and when his only failure is in the character of the lamp, and not in the efficiency of the light for practical uses and in the protection afforded his servants, it can not well be said that there has been an abandonment of that obligation. The appellee could contend for no more than that the absence of an efficient light was the cause of the collision. The means of supplying it were provided by the master. The employment of the means was a duty resting upon Ferris, the appellee's fellow-servant, and not upon the master. If the lamp of the headlight had not been out of repair, Ferris should have lighted it, and his failure to do so could not have been charged to the appellant. If it had been the duty of Ferris to take on a new headlight at Argos, and he had failed to do so, when it was provided by the company, such negligence would not have been chargeable to the appellant. It is not even suggested that it was not the duty of Ferris to light the handlamps and place them in the headlight, nor is it intimated that his failure to do this is properly due to the appellant's negligence, or, of itself, creates any liability against the appellant.

Taking out of consideration the violation, by Ferris, of explicit orders to remain at Argos until the appellee's train had passed that station, there would seem to be but little basis for the claim that the appellant's omission was the cause of the collision. It would then present the case upon the absence of a light as the cause of the collision, or as the cause for the failure to avoid the collision, the appellee insisting that it was the absence of a particular light, the regulation headlight, and the evidence having shown the presence of efficient lamps, not burning because of the negligence of appellee's fellow-servant. To cast the responsibility upon the company and not upon Ferris would be to charge the company for the mere difference in the form of the lamps effecting the same results, avoiding the collision, and thus predicate our decision upon a shadow while abandoning the substance. To do this would be to strike down a well-settled rule, the fellow-servant rule, and hold the master liable where the direct and immediate cause of the injury is the negligence of a fellow-servant. To so decide would run counter to that well established rule, observed in the original opinion, and fortified by the unbroken line of authority for centuries, that it is the proximate, and not the remote cause of injury against which relief is granted.

Again, the appellee urges that the servant does not assume the negligence of the master, nor of the fellow-servant participating with that of the master. Again, we assent to this proposition, but it does not imply that the master is liable for an injury occasioned directly by the negligence of the fellow-servant, although the master may have been guilty of negligence not participating in the injury. The law does not punish the master for a negligence which occasions no injury. If it did, the injury would not be a condition of recovery. When we find that the appellee's misfortune was due to the negligence of Ferris, a fellow-servant, and that the appellant's omission was not a juridical cause of the injury, we have then reached the point that though such omission was negligent, and co-existed with the negligence of Ferris, it was not a concurrent cause of the injury. The omission may have concurred as a condition, but not as a cause, and herein there is a wide distinction. See Wharton's Law of Negligence, section 85, p. 323. This distinction is well stated in Bostwick v. Minneapolis, etc., R. Co., 49 Am. and Eng. R. R. Cases, 527, as follows: "Negligence is contributory when, and only when, it directly and proximately induces the injury in whole or in part. * * * Where one party has been negligent, and a second party, knowing of such antecedent negligence, fails to use ordinary care to prevent an injury which the antecedent negligence rendered possible, and the injury follows by reason of such failure, the negligence of the second party is the sole proximate cause of the injury." See, also, McGahan v. Indianapolis Natural Gas Co., 37 N.E. 601.

Again, the appellee urges that if it had not been for the appellant's omission the collision would not have occurred. This is but an effort to reach the conclusion that appellant's omission was a proximate cause of the injury, but the argument is treated by Wharton (Neg. 323) as sophistical. In discussing the proposition that remote negligence is not contributory negligence, that learned author says: "A person, it has been seen, is juridically the cause of an injury, if his act (or omission), supposing that there is no intervention of disturbing independent moral agents, would be, according to the usual course of events, followed by such injury. This, as is shown by a distinguished contemporary German jurist, is the true application of Aristotle's exposition of causation, which is accepted by the Roman jurists, and is equivalent to the distinction between proximate and remote causation, as expressed by Anglo-American law.

"It is not enough * * to apply this definition to negligence (to declare), that if the injury would not have occurred had it not been for the plaintiff's negligence, then the plaintiff's negligence is to be regarded as the cause of the injury. Of multitudes of antecedents can it be truly said, that if they had not existed the injury would not have occurred; yet of how few of such antecedents can it be said that they juridically caused the injury.

"A gas company, to take one of the cases which the present discussion presents, neglects to close a leaking pipe, and in consequence of the leakage the plaintiff is injured. Had the plaintiff not been in the town at the time,--had the plaintiff never been born,--had there been no...