Valparaiso Lighting Co. v. Letherman
| Decision Date | 30 June 1910 |
| Docket Number | No. 6,777.,6,777. |
| Parties | VALPARAISO LIGHTING CO. v. LETHERMAN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Lake County; W. C. McMahan, Judge.
Action by Andrew Letherman, administrator of the estate of Daniel F. Horner, against the Valparaiso Lighting Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded for new trial.E. E. Stevenson and L. L. Bomberger, for appellant. N. L. Agnew, C. B. Tinkham, and D. E. Kelly, for appellee.
The appellee, as administrator of the estate of Daniel F. Horner, deceased, recovered a judgment for damages against the appellant for the death of said Horner, caused by the alleged negligence of the appellant. There were two paragraphs of complaint, a demurrer to each of which for want of sufficient facts was overruled; and the court overruled appellant's motion for a new trial.
After showing the representative character of the appellee, and that the appellant was a corporation owning, operating, and conducting a gas plant with the necessary buildings, tanks, retorts, and appliances for manufacturing and supplying gas to the citizens of the city of Valparaiso, Ind., it was alleged, in substance, in the first paragraph that the intestate on June 25, 1906, was in the employ of the appellant as fireman in and about the furnaces at the gas plant, his duty being to supply the furnaces with coal and to make and keep fires; that one Howard Shinnebarger was foreman of the appellant in and about the plant and works of the appellant, and as such had charge of the whole plant and the laborers and the work in and about the plant, including the intestate and the work done by him; that all the laborers, including the intestate, were bound to conform, and did conform, to the orders and directions given by said foreman, and not otherwise, and the intestate received his orders and directions about his work and conduct solely from said foreman; that on the day mentioned, and for 10 years prior thereto, the appellant had constructed and maintained a bridge along and in front of its retorts and standpipes, which bridge was about 15 feet above the brick floor, and consisted of a runway made of iron floor plates and an iron railing upon the opposite side of the retorts and standpipes; that this railing or guard extended to a height of 36 inches above the floor of the bridge, and its purpose was to prevent persons standing or walking on the bridge or runway from falling off the same to the floor below; that for more than a year prior to said date the appellant had negligently allowed this rail and guard to become rotten, rusty, corroded, weak, and useless, as the appellant well knew at and prior to that time; that the condition of the guard and rail was unknown to the intestate; that on that day the foreman desired to lift a heavy iron tank from the floor to and upon the bridge, and for that purpose ordered the workmen to climb upon the bridge and by means of ropes and pulleys raise the tank from the floor to the bridge, and for that purpose ordered and directed the intestate to leave his work at the furnace and repair to the bridge and assist in raising the tank; that in all matters about the plant and works the intestate was bound to conform to and obey the orders and directions of the foreman, who had full authority from the appellant to act for it in that behalf, and, when so ordered by the foreman, the intestate left his work of firing the furnace and climbed upon the bridge and stood thereon between the railing and the retort to which the bridge was attached; that the intestate and others under the charge, order, and direction of the foreman undertook to raise the tank to the bridge, which, on account of such weak, useless, rotten, rusty, and corroded condition, and not otherwise, broke and gave way, and precipitated the intestate and the laborers whom he was assisting, together with the iron tank, to the floor beneath; that the intestate was in the exercise of due care in proceeding to obey, and in obeying said order, as aforesaid, the intestate was injured and from which injurieshe died; and that said negligence of the appellant in so allowing the bridge to become rusty, corroded, weak, rotten, and useless for the purpose for which it was used and intended to be used, and in so ordering the intestate to go upon the same while it was in such condition was the immediate and proximate cause of the sickness and death of the intestate, etc. The second paragraph was like the first, except that it describes the negligence of the foreman in what he did, and alleged his knowledge of the defective condition of the railing, and that the intestate's fall and injury were caused by the negligence alleged of the appellant and the alleged negligence of the foreman.
It is claimed on behalf of the appellant that the second paragraph was based upon the second clause of the first section of employer's liability act (Acts 1893, p. 294; section 8017, Burns' Ann. St. 1908), which was held invalid as applied to such corporations as the appellant. Bedford Quarries Company v. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418. The person whose order the intestate obeyed is not by the pleading in either paragraph shown to be a vice principal. He is represented as acting in the capacity of a foreman, which is compatible with being a fellow servant of the intestate. So far as the averment in either paragraph that the intestate was bound to obey and did obey the foreman is concerned, it can have no greater significance than to aid in showing that the intestate was acting in the line of his duty under his employment. But the injury and death are shown in each paragraph to have been caused by the negligent failure to keep in sufficient repair the place and appliance with which...
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