The Ohio And Mississippi Railway v. Pearcy

• Decision Date: 30 April 1891
• Docket Number: 14,539
• Citation: 27 N.E. 479,128 Ind. 197
• Parties: The Ohio and Mississippi Railway Company v. Pearcy, Administratrix
• Court: Indiana Supreme Court

27 N.E. 479

128 Ind. 197

The Ohio and Mississippi Railway Company v. Pearcy, Administratrix

No. 14,539

Supreme Court of Indiana

April 30, 1891

From the Jennings Circuit Court.

Judgment affirmed, with costs.

E Barton, W. M. Ramsey, L. Maxwell, R. Ramsey, W. R. Johnston H. D. McMullen and H. R. McMullen, for appellant.

A. G Smith, W. Fitzgerald and A. C. Harris, for appellee.

OPINION

Olds, C. J.

This action was brought by the appellee, administratrix of the estate of David L. Pearcy, deceased, against the appellant, to recover damages occasioned by the death of said deceased, who, at the time of the accident which it is alleged caused his death, was a brakeman upon one of the appellant's freight trains.

There was a trial before a jury and a general verdict returned in favor of the appellee, and with their general verdict the jury also returned answers to interrogatories submitted to them.

The appellant filed a motion for judgment in its favor on the answers to interrogatories, notwithstanding the general verdict, which motion was overruled. Appellant also moved for a new trial, which motion was overruled, and a motion in arrest of judgment was made by the appellant and overruled. Exceptions to the several rulings were reserved and judgment was rendered by the court upon the verdict.

Appellant assigns as error that the complaint does not state facts sufficient to constitute a cause of action; that the court erred in overruling appellant's demurrers to the first, second and third paragraphs of the complaint, and each of them; that the court erred in overruling appellant's motion for a new trial; that the court erred in overruling appellant's motion for judgment in its favor upon the answers to interrogatories, notwithstanding the general verdict, and that the court erred in overruling appellant's motion in arrest of judgment.

The principal question discussed relates to the sufficiency of the several paragraphs of the complaint.

The first paragraph is as follows:

"First Paragraph. Florence M. Pearcy, administratrix of the estate of David L. Pearcy, deceased, complains of the Ohio and Mississippi Railway Company, defendant, and says that the defendant is a corporation, organized under the laws of the State of Indiana, and owns and operates, for hire, a railroad running through the counties of Jennings, Ripley and Dearborn, in said State, commonly known as the Ohio and Mississippi Railroad; that, on the 1st day of August, 1887, said David L. Pearcy was employed by the defendant to work for it in and about its freight trains, in the capacity of a brakeman on said railroad, in the transportation of freight over defendant's said railroad for hire; that on said day, while said David L. Pearcy was at work pursuant to his said employment, and in the proper discharge thereof, in the capacity of a brakeman on a certain freight train, then being transported by the defendant over its said railroad, at or near a place known as Moore's Hill grade, in Dearborn county, State of Indiana, he was killed by reason of the defectiveness and unsafe condition of a brake and the appliances thereof on one of the defendant's cars in said freight train, the said brake and appliances being unsafe, defective and out of repair, in this, that the threads of the screw on top of the brake-staff of said brake had become and were worn out and battered so that said threads would not hold a nut securely so as to keep the brake wheel on said brake-staff, when the said wheel was grasped to let off brakes, as said Pearcy was required in his said employment to do by the defendant as a brakeman on said freight train, and which he might with safety do when said screw and nut were in good condition and repair, which unsafe and defective condition of said brake, brake staff and screw was unknown to said David L. Pearcy, and which brake, brake-staff and screw the defendant negligently and carelessly used in its said business on said day and for many days prior thereto; that, on said 1st day of August, 1887, at or near the foot of said Moore's Hill grade, the said David L. Pearcy was required by said defendant, pursuant to said employment, to let off the said brake while said train was in rapid motion, and when he was grasping said brake wheel to let off said brake, the said wheel came off in his hands by reason of the fact that the threads of said screw were in the condition aforesaid, and did not, and would not, by reason of its unsafe and defective condition, retain the nut that held said brake wheel in position on said brake staff, and said brake wheel coming off suddenly in his hands, while the said David L. Pearcy was applying only sufficient force thereto to let off said brake, he thereby lost his balance and was thrown forward and off said car onto the ground below and killed, without fault or negligence on his part, or on the part of the plaintiff; that said David L. Pearcy was a young man about 24 years of age, and in good health and splendid physical condition, and had dependent on him for support a young wife and unborn child at the time he lost his life as aforesaid; that, on the day of November, 1887, the plaintiff was appointed administratrix of his estate by the circuit court of Jackson county, in the State of Indiana. Wherefore plaintiff demands judgment for ten thousand dollars, and all other and proper relief."

It is contended that the first paragraph of the complaint is bad for the reasons that it is not alleged that the appellant company had any knowledge of the defect by which it is alleged the deceased received the alleged fatal injury; that it is not averred in the complaint that the deceased did not have the same means of knowledge as to the defects complained of as the appellant had; that it is shown by the averments of the first paragraph of the complaint that the deceased at the time of the injury was an employee of the appellant company, employed by the appellant to work for it in and about its freight trains in the capacity of a brakeman on said railroad in the transportation of freight over appellant's said railroad for hire, and while so employed the injury occurred; that it is nowhere alleged that appellant had not exercised ordinary care and prudence in procuring the brake and staff in question, nor that when the brake-staff was put upon the car it was unsafe or defective.

The law imposes upon an employer the duty of providing for his employee a reasonably safe place to work, and safe machinery to work with. As applicable to the case at bar, the law imposed a duty on the railroad company to provide and maintain reasonably safe and suitable cars, together with the necessary appliances to run and operate the trains. These duties were imposed upon the master, and the employee had the right to rely upon their having been performed. True, the employee was charged with the duty of exercising his faculties, and with the knowledge of such defects as were observable with the reasonable exercise of his faculties in connection with the performance of his accustomed duties, but he was not bound to search for defects, or to test the machinery in advance of using it, for he had the right to proceed to use the appliances for the operation, running and management of the train, relying upon the master having discharged his duty and provided safe appliances without stopping to investigate the sufficiency or soundness of the appliances, unless the defect was so apparent as to convey to him its unsafe and dangerous condition upon his approach without investigation. If the employee had actual knowledge of its unsafe condition, then it would be negligence to use it, and if knowing the unsafe condition of the appliance the employee attempted to use it he would assume the extra hazard in so doing.

The duty on behalf of the employer does not end with simply providing safe machinery and appliances for the use of his employees, but the further duty is imposed of continuously exercising reasonable diligence and care to ascertain and know the condition of such machinery and appliances, and to keep them in a proper and safe condition and the employee...