Vandalia R. Co. v. Stilwell

• Decision Date: 10 March 1914
• Docket Number: No. 22,249.,22,249.
• Parties: VANDALIA R. CO. v. STILWELL.
• Court: Indiana Supreme Court

181 Ind. 267

104 N.E. 289

VANDALIA R. CO.

v.STILWELL.

No. 22,249.

Supreme Court of Indiana.

March 10, 1914.

Appeal from Circuit Court, Morgan County; Joseph W. Williams, Judge.

Action by Charles Stilwell against the Vandalia Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.Pickens & Pickens and John G. Williams, all of Indianapolis, for appellant. Wymond J. Beckett and D. E. Watson, both of Indianapolis, for appellee.

MYERS, J.

This was an action by appellee against appellant by a complaint in two paragraphs, to recover for personal injuries for alleged negligence while in the employment of appellant, as a freight brakeman. The first paragraph of complaint charges negligence of the engineer in backing an engine and cars against a car on which appellee was riding in the course of his duty, whereby he was thrown from the car and injured, and no question is raised as to its sufficiency. The second paragraph counts on a liability under the Employers' Liability Act of March 2, 1911 (Acts 1911, p. 145). The sufficiency of that paragraph is challenged by an assignment of error in overruling appellant's demurrer to it. The specific grounds of challenge of the constitutionality of this act is that it makes an employer liable for an injury to an employé arising out of dangers and hazards inherent in the nature of the employment, without fault of the employer, and thereby deprives appellant of its liberty and property without due process of law, in violation of article 14, in amendment of the federal Constitution, and of section 12, art. 1, of the state Constitution, and that it makes employers of five or more persons liable, and leaves employers of less than five persons free from the obligations, and liabilities imposed by the act, and thereby denies appellant the equal protection of the laws in violation of the fourteenth amendment to the federal Constitution, and section 23, art. 1, of the state Constitution.

[1][2] A brief analysis of the act seems pertinent. Section 1 makes its provisions applicable only to employers of five or more persons, and abrogates the fellow-servant rule, but restricts liability to negligence (our own italics throughout) in whole or in part producing the injury, or death. Section 2 places the burden of proof of lack of “due care and diligence,” negligence, on the employer, in analogy to the act of 1899 (Acts 1899, p. 58; Burns 1908, § 362). Assumption of risk is removed when there is a violation of an ordinance or statute, or any rule, regulation, or direction, made by any public commission. This last clause is but a declaration of the law and the rule under then existing decisions under analogous statutes. Jeffersonville, etc., Co. v. Holden, 102 N. E. 21;Peabody, etc., Co. v. Yandell, 100 N. E. 758;Evansville, etc., Co. v. Robertson (App.) 100 N. E. 689;American, etc., Co. v. Adams, 178 Ind. 607, 99 N. E. 993;Chandler, etc., Co. v. Sams, 170 Ind. 623, 85 N. E. 341.

The defense of the hazards and dangers inherent or apparent in the employment contributing to the injury is taken away. This is but a phase of assumption and a corollary of the removal of the assumption of risk. The defenses of negligence and contributory negligence, resulting from obedience or conformity to any order or direction to which the employé is required to obey or conform, though contrary to some other rule, are eliminated. If we are forced to the construction that the last two clauses of section 2 take away the element of negligence on the part of the employer-that is, that there shall be a liability irrespective of the employer's negligence-we would be bound to hold it invalid; but we think, in view of the provisions of section 1 which still only allow a recovery for negligence of the employer, that negligence still is the essence of liability under all the provisions of the act, and that the clauses, properly construed, mean only to take away assumption of the risk where injury arises from “dangers or hazards inherent or apparent” or from obedience or conformity “to any order, or direction,” etc., and no broader than the express provisions of sections 2 and 3, removing assumption of the risk. This construction renders the act in the particulars consistent and harmonious, and we are required, if we can, to give it a construction which will render it harmonious and constitutionally valid.

By section 3 assumption of the risk is removed, when the violation by the employer of his or its agents or employés of any ordinance, etc., contributed to the injury, or when it arises from obedience to orders or directions from the employer, or any person whom the employé is bound to obey. Then assumptionof the risk from defects in the place of work, tools, or appliances is removed, where the defect is known, or can by the exercise of ordinary care be known, in time to repair, or to discontinue the use. These clauses are but corollaries of the provisions of the second section as to assumption of risk. The last clause is only a declaration of the rule applied by the courts upon the subject, and of the common law. Evansville, etc., Co. v. Robertson, supra; Romona, etc., Co. v. Shields, 173 Ind. 68, 88 N. E. 595;United States, etc., Co. v. Cooper, 172 Ind. 599, 88 N. E. 69;Chicago, etc., Co. v. Wilfong, 173 Ind. 308, 90 N. E. 307;Cleveland, etc., Co. v. Perkins, 171 Ind. 307, 86 N. E. 405;Lake Shore, etc., Co. v. Johnson, 172 Ind. 548, 88 N. E. 849.

There follows, however, the marked change of the rule, as to the burden of proof, as to the question of assumption of risk, with respect to the place, tools, etc. It may be observed that until the declaration of the fellow-servant rule in Priestley v. Fowler (1837) 3 M. & W. 1, the master was civilly liable as to third persons for all wrongs committed by himself or his servant, or agent, while acting in the master's business, or within the scope of the agency; but there was no rule of the common law making the master liable for the negligence of fellow servants. The question seems not to have arisen previously. The rule of nonliability, the master being without fault, was first marked in this country in 1841 in Murray v. South Carolina, etc., Co., 1 McNul. (S. C.) 385, 36 Am. Dec. 268, and note. The doctrine was enlarged in Farwell v. Boston, etc., Co. (1842) 45 Mass. (4 Metc.) 49, 38 Am. Dec. 339, from which case the rule became one of general application, so that the statute under consideration marks a distinct departure from the established rule respecting the fellow servants.

Section 1 destroys the fellow-servant rule. Sections 2 and 3 do not change the rule of assumption of the risk in the particulars in which it is declared not to be assumed, or the rule of contributory negligence in the particulars specified, or the rule as it now exists as to the burden of proof as to negligence, but section 3 does change the rule as to the burden of proof with respect to knowledge, or being chargeable with knowledge of the defect in place, tool, or appliance in time to repair or discontinue the use.

It is not questioned here but that the Legislature had the power to abolish the fellow-servant rule, and restrict the defenses of assumption of the risk, and contributory negligence, and change the burden of proof, if done within constitutional limitations. Mondou v. New York, etc., Co. (1912) 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44.

The question then becomes one, not of power, but of interpretation as to this feature of the case. Appellant claims that the act is invalid because it creates liability “without fault on the part of the employer,” and therefore deprives it of liberty and property without due process of law and due course of law. We cannot concede the point. The act nowhere attempts to create liability unless negligence be present, either from violation of some ordinance, statute, rule, etc., or the injury arises from compliance with an order or direction of one whose order or direction the injured person is bound to obey, or from the use of a defective working place, tool, or appliance, known by the employer to be defective, or which it is the master's duty to use ordinary care to keep in repair, or to discontinue its use. The right to trial by jury as to the question of negligence still remains. We might have a different question if there were an attempt to create liability without negligence on the part of the master. Ives v. South Buffalo, etc., Co., 201 N. Y. 274, 94 N. E. 431, 34 L. R. A. (N. S.) 162, Ann. Cas. 1912B, 156;Ohio, etc., Co. v. Lackey (1875) 78 Ill. 55, 20 Am. Rep. 259;Zeigler v. South, etc., Co. (1877) 58 Ala. 595;Birmingham, etc., Co. v. Parsons, 100 Ala. 662, 13 South. 602, 27 L. R. A. 263, 46 Am. St. Rep. 92;Bielenberg v. Montana, etc., Co. (1889) 8 Mont. 271, 20 Pac. 314, 2 L. R. A. 813;Jensen v. Union Pac., etc., Co. (1889) 6 Utah, 253, 21 Pac. 994, 4 L. R. A. 724.

So, too, we might have a different question under section 2 with respect to the provisions removing the defense of contributory negligence as to “dangers or hazards inherent, or apparent in the employment,” unless that clause be regarded as removing the assumption of the risk, or as necessarily involving negligence, as being implied from the use of the phrase “contributory negligence,” as it would seem that there can be no contributory negligence on the part of the servant, without negligence on the part of the master. Beach, Contributory Negligence (3d Ed.) § 7.

The action is not grounded on injury arising from dangers or hazards inherent, or apparent in the employment. Nor was a defense interposed on either of those grounds; but, as to the complaint and defense, both are grounded on the alleged negligence of a fellow servant, a fellow brakeman. The statute is bottomed on negligence, actual or implied, either of omission or commission, but nevertheless negligence of imposed duties, either common-law or statutory.

[3][4] The...