Valparaiso Lighting Company v. Letherman
| Decision Date | 30 June 1910 |
| Docket Number | 6,777 |
| Citation | 92 N.E. 346,46 Ind.App. 303 |
| Parties | VALPARAISO LIGHTING COMPANY v. LETHERMAN, ADMINISTRATOR |
| Court | Indiana Appellate Court |
From Lake Circuit Court; W. C. McMahan, Judge.
Action by Andrew P. Letherman, as administrator of the estate of Daniel F. Horner, deceased, against the Valparaiso Lighting Company. From a judgment on a verdict for plaintiff for $ 5,000, defendant appeals.
Reversed.
Elmer E. Stevenson and L. L. Bomberger, for appellant.
N. L Agnew, C. B. Tinkham and D. E. Kelly, for appellee.
Appellee, as administrator of the estate of Daniel F. Horner, deceased, recovered a judgment for damages against appellant, for the death of said horner, caused by the alleged negligence of appellant.
There were two paragraphs of complaint, a demurrer to each of which, for want of sufficient facts, was overruled. The court also overruled appellant's motion for a new trial.
After showing the representative character of appellee, and that appellant is a corporation owning, operating and conducting a gas-plant, with the necessary buildings, tanks, retorts and appliances for manufacturing gas and supplying it to the citizens of the city of Valparaiso, Indiana, the first paragraph alleged, in substance, that decedent, on June 25, 1906, was in the employ of appellant as fireman in and about the furnaces of the gas-plant; that it was his duty to supply the furnaces with coal, and to make and keep fires; that Howard Shinnebarger was appellant's foreman in and about its plant and works, and as such had charge of the whole plant and of the laborers and the work in and about the plant, including decedent and the work done by him; that all the laborers, including decedent, were bound to conform, and did conform, to the orders and directions given by said foreman, and not otherwise, and decedent received his orders and directions about his work and conduct solely from said foreman; that on the day mentioned, and for ten years prior thereto, appellant had maintained a bridge along and in front of its retorts and standpipes, which bridge was about fifteen 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 thirty-six inches above the floor of the bridge, and its purpose was to prevent persons standing or walking on the bridge from falling to the floor below; that, for more than a year prior to said date, appellant had negligently allowed this rail and guard to become rotten, rusty, corroded, weak and useless, as appellant well knew at and prior to the time of the accident; that the condition of the railing was unknown to decedent; that on said day the foreman desired to lift a heavy iron tank from the floor to 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 decedent to leave his work at the furnace, go to the bridge, and assist in raising the tank; that in all matters about the plant and works decedent was bound to conform to and obey the orders and directions of the foreman, who had full authority from appellant to act for it in that behalf; that, when so ordered by the foreman, decedent 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 decedent 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 decedent and the laborers whom he was assisting, together with the iron tank, to the floor beneath; that decedent while in the exercise of due care in proceeding to obey and in obeying said order as aforesaid was injured, from which injuries he died; that said negligence of appellant in so allowing the bridge to become rusty, corroded, weak and rotten, and useless for the purpose for which it was used and intended to be used, and in so ordering decedent to go upon the bridge while it was in such condition, was the immediate and proximate cause of the sickness and death of decedent.
The second paragraph was like the first, except that it described the negligence of the foreman in what he did, and alleged his knowledge of the defective condition of the railing, and that decedent's fall and injury were caused by the alleged negligence of appellant and of the foreman.
It is claimed, on behalf of appellant, that the second paragraph was based on the second clause of the first section of the employers' liability act (Acts 1893 p. 293, § 8017 Burns 1908), which was held invalid as applied to such corporations as appellant. Badford Quarries Co. v. Bough (1907), 168 Ind. 671, 14 L. R. A. (N. S.) 418, 80 N.E. 529. The person whose order the decedent obeyed is not by the pleading 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 decedent. So far as the averment in either paragraph, that decedent was bound to obey and did obey the foreman, is concerned, it can have no greater significance than to aid in showing that the decedent was acting in the line of his duty under his employment. But in each paragraph the injury and death are shown to have been caused by the negligent failure to keep in sufficient repair the place where and appliance with which decedent was performing his service; and we are of the opinion that each paragraph showed a commonlaw liability.
It was assigned in the motion for a new trial that the verdict was not sustained by sufficient evidence, and was contrary to law.
From the undisputed evidence, it appears that one Hayden had charge of appellant's plant as manager, and hired and discharged the men who worked there. The whole business of the company was in his charge. Shinnebarger was employed as a foreman of the gas making, in which business he was an expert, and he did general duties around the plant, looking after the work, making necessary repairs and such improvements as Hayden laid out for him, and such as said foreman could do, helping the men at the retorts and performing any work that came up. Hayden gave the foreman orders as to what he was to do about the plant. If improvements were made, they were laid out for him by the...
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