The Pennsylvania Company v. Congdon

• Decision Date: 16 March 1893
• Docket Number: 15,441
• Citation: 33 N.E. 795,134 Ind. 226
• Parties: The Pennsylvania Company v. Congdon, by Next Friend
• Court: Indiana Supreme Court

33 N.E. 795

134 Ind. 226

The Pennsylvania Company v. Congdon, by Next Friend

No. 15,441

Supreme Court of Indiana

March 16, 1893

From the Allen Circuit Court.

The judgment is reversed, with instructions to grant a new trial.

J Brackenridge, J. Morris and A. Zollars, for appellant.

L. M Ninde and H. W. Ninde, for appellee.

OPINION

Howard, J.

This was an action for damages, brought by appellee against appellant, resulting in a verdict and judgment for appellee.

The complaint is assailed for the first time in this court. The pertinent averments are the following:

"In June, 1888, when this plaintiff was an infant, eighteen years of age, said defendant employed him as an extra brakeman upon its train of freight cars running upon said road, and, on September 16th, 1888, plaintiff was still continuing in said service for said defendant, and plaintiff was young and inexperienced in said business, and unable to appreciate and understand all the dangers and hazards of said business in which he was so engaged, which was well known to said defendant on said 16th of September, 1888; that, on said 16th of September, 1888, said defendant required plaintiff to go upon a train of freight cars on its said line of railroad from Fort Wayne to Chicago, and required plaintiff, upon said trip, * * to act as front brakeman on said train; that plaintiff, as requested and directed by defendant, did go upon said freight train, * * and, while the same was running from Fort Wayne to Wanatah, * * did act as front brakeman that when said train arrived at Wanatah, and long before it arrived there, and long after it departed therefrom, it was nighttime, and dark, and plaintiff was unable to perform his duties without the aid of a lantern to light his way, and plaintiff was for some time before the receipt of the injury as hereinafter set forth, using a lantern provided for his use by said defendant, in lighting his way in discharging his said duties; that his duty as such brakeman required him to use said lantern in making signals to other trainmen upon said train; that said train was equipped with air brakes, by the use of which the engineer of said train could stop the same suddenly, and would so stop the same upon proper signal being given; that the lantern so furnished by defendant for plaintiff's use, and which he was then using, was defective, and not properly guarded from the wind, and would go out when properly used in making proper signals, which was unknown to plaintiff; that shortly after said train started west from Wanatah, and while plaintiff was upon said train, and on the top of a car thereof, in the proper discharge of his duty, he waved a signal with his said lantern, and the light in the same, by reason of its defective condition, went out, and plaintiff not being able to light the same where he was, and being ignorant of the proper thing to do under the circumstances, and having received no instructions from said defendant as to the course he should pursue under such circumstances, and being unable to discharge his duties without such light, started to go to the engine of said train to relight said lantern; that as he reached the front end of said car, next to said engine, the engineer thereof, without warning or signal, put on the air brakes upon said train and engine, suddenly slowing said train, whereby plaintiff was thrown forward and between said car and the tender of said engine, and down upon the track of said railroad, and the wheels of said train passed over said plaintiff's arm, and crushed, bruised, and maimed the same, so that his said arm was necessarily amputated at the shoulder joint, and he suffered great mental and physical anguish and pain, and was permanently injured, and was compelled to expend large sums of money in medical attendance, nursing, and medicine, and was damaged in the sum of fifteen thousand dollars; that said injury was received, and said damages sustained, without any negligence whatsoever on the part of plaintiff; that defendant well knowing the plaintiff's youth and inexperience, and inability to comprehend the dangers of his said employment, or to know what course to pursue under the circumstances which resulted in said accident, so negligently put plaintiff in said position, place, and business, without any instructions given him as to what he should do under such circumstances, and without any caution or warning as to the dangers attendant upon such service or the use of such air brakes, and so negligently gave him such defective locomotive [lantern ?] for use as aforesaid, by reason of which negligence said injuries were received and said damages sustained. Wherefore," etc.

This complaint was not challenged in the circuit court, so that all minor defects, if any, must be held to be cured by the verdict.

The complaint will stand, unless there is some fault in it which affects in a very material degree the cause of action. Elliott's App. Proced., section 473, and cases cited in notes; Buskirk's Practice, and cases cited.

In McGregor v. Hubbs, 125 Ind. 487, 25 N.E. 591, it is said that "An assignment of error, that the complaint does not state facts sufficient to constitute a cause of action, is not available for the reversal of the judgment, unless some fact essential to the existence of the cause has been wholly omitted from the complaint."

To enable an employee to recover damages from his employer, on account of injuries received by reason of defective places, machinery, or appliances, or incompetent co-employees, furnished by the employer for the use or assistance of the employe, it is necessary, in general, to allege and prove that the employer was in fault, and that the employee was without fault; or, at least, to allege and prove facts from which such fault and want of fault may be inferred.

In this case it is, therefore, essential that the averments of the complaint should show that any defects alleged to exist in the management of appellant's train, or in the character or quality of the appliances used in connection with the running of the train, from which the accident resulted, were due to the negligence or carelessness of appellant, and that appellee was himself free from such negligence or carelessness.

It may be necessary to say something of the real cause of the accident as disclosed in the complaint, and to distinguish the cause of the accident from the incident, or occasion, connected with it. Webster defines an occasion, as distinguished from a cause, to be "That which incidentally brings to pass an event, without being its efficient cause, or sufficient reason."

While the cause to be considered must be the proximate, and not the remote, cause, yet "the question is not what cause was nearest in time or place to the catastrophe."

In Ins. Co. v. Boon, 5 Otto 117, 24 L.Ed. 395, the proximate cause is defined to be "The efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental, or instruments of a superior or controlling agency, are not the proximate causes, and the responsible ones, though they may be nearer in time to the result." And, the court continues: "If two causes conspire, and one must be chosen, the more scientific inquiry seems to be, whether one is not the efficient cause, and the other merely instrumental or merely incidental, and not which is nearer in place or time to the consummation of the catastrophe. * * In Gordon v. Rimmington, 1 Camp. 123 (cited in Phillips Ins., section 1097), it was held that when the captain of a ship insured against fire burned her to prevent her falling into the hands of the enemy, it was a loss by fire within the meaning of the policy. It was because the fire was caused by the public enemy. The act of the captain was the nearest cause in time, but the danger of capture by the public enemy was regarded as the dominating cause. * * In Lund v. Tyngsboro, 11 Cush. (Mass.) 563, where it appeared that a traveler had been injured by leaping from his carriage, exercising ordinary care and prudence, in consequence of a near approach to a defect in a highway, the town was held liable, though the carriage did not come to the defect. The defect was regarded as the actual, the dominating cause. * * In Insurance Co. v. Tweed, 7 Wall. 44, 19 L.Ed. 65, it was, in effect, ruled that the efficient cause, the one that set others in motion, is the cause to which the loss is to be attributed, though the other causes may follow it and operate more immediately in producing the disaster."

So it has been frequently held that a railroad company is liable for injury to land by fire, caused by its negligence, although the fire did not come directly from the railroad, but from land belonging to another owner and lying intermediate between the railroad and the plaintiff's land; the negligence of the company in such case being considered not the remote but the proximate cause of the injury. Delaware, etc., R. R. Co. v. Salmon, 10 Vroom, 299, 23 Am. Rep. 214; Clemens v. Hannibal, etc., R. R. Co., 53 Mo. 366, 14 Am. Rep. 460; Atchison, etc., R. R. Co. v. Stanford, 12 Kan. 354, 15 Am. Rep. 362; Poeppers v. Missouri, etc., R. W. Co., 67 Mo. 715, 29 Am. Rep. 518.

In the carefully considered case of Billman v Indianapolis, etc., R. R. Co., 76 Ind. 166, 40 Am. Rep. 230, where a team of horses was frightened by a railroad engine and ran against another horse and killed it, it was contended that the killing of the horse, being done by the runaway team, the negligence of the railroad company was too remote a cause; but the court held that the injury...