Vandalia Railroad Company v. Stringer
| Decision Date | 25 November 1914 |
| Docket Number | 22,352 |
| Citation | 106 N.E. 865,182 Ind. 676 |
| Parties | Vandalia Railroad Company v. Stringer |
| Court | Indiana Supreme Court |
Rehearing Denied February 9, 1915, Reported at: 182 Ind. 676 at 684.
From Superior Court of Marion County (86,507); Joseph Collier Judge.
Action by Nathaniel G. Stringer against Vandalia Railroad Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Samuel O. Pickens, Owen Pickens and John G. Williams, for appellant.
Wymond J. Beckett, for appellee.
This action was brought by appellee against appellant on a complaint in one paragraph. Demurrer of appellant to this complaint was overruled. An answer in general denial put the case at issue. Trial by jury which resulted in the return of a verdict for appellee in the sum of $ 16,500. A motion for a new trial on the part of appellant was overruled, and judgment entered on the verdict. From this judgment appellant appeals to this court. The assignments of error not waived present the questions, (1) overruling the demurrer to the complaint, (2) overruling the motion for a new trial.
The complaint in this case avers that the appellant was a railroad corporation, engaged in interstate commerce and alleges that he, appellee, was injured by reason of the carelessness and negligence of the engineer in allowing the water to become low on the crown-sheet of the locomotive, and then suddenly injecting water into the boiler of said locomotive and causing a sudden and extreme amount of steam to be generated, thus causing the crown-sheet to drop into the fire box and thus caused a loud report and noise, which led appellee to believe he was in danger of great bodily harm, and acting on that belief jumped from the window of said cab and was severely injured; that appellee was a brakeman on appellant's train and that it was his duty and that he was directed to ride in the cab of said engine, while running.
To this complaint appellant demurred for the reason "that said complaint does not state facts sufficient to constitute a cause of action". The memorandum with said demurrer is to the effect, (1) the complaint does not state a cause of action at common law, because at common law the engineer was a fellow servant of the plaintiff and the defendant is not liable for his negligence, (2) the complaint does not state a cause of action under any statute. In order to state a cause of action based upon a right of action created by statute, the provisions of the statute must be set forth or specific reference made thereto, together with the averment that the plaintiff seeks to recover by virtue of the provisions of such statute, (3) the facts alleged in the complaint show that the plaintiff, by his own negligence materially contributed to his injury.
On the question of the sufficiency of the complaint it is contended that the complaint is bad and that the court committed error in overruling the demurrer thereto because the facts alleged show that the plaintiff's own negligence was the proximate cause of the injury. The complaint avers that as he was riding in the engine cab, defendant's engineer on said locomotive engine, defendant's agent and servant who was running and operating said locomotive, negligently permitted the water to get and become low in the boiler of said engine; that said engineer negligently permitted the water to get so low that the crown-sheet in said engine above the fire box in said engine, became dry and wholly uncovered with water; that said crown-sheet became extremely hot by reason of its exposure to the heat in said fire box, and while in said heated condition defendant's said engineer turned the water into said boiler and upon said crown-sheet, and that on account of said crown-sheet being heated to such excessive heat the water was instantly converted into steam and thereby caused the crown-sheet to become loosened and drop from its position in said engine, causing a great noise and explosion. And plaintiff says that he believed that said boiler was about to explode, or had exploded, and that he leaped from the window of said cab of said engine in order to save his life; that the said engineer and also the fireman upon said engine leaped from said locomotive at the same time, believing as did this plaintiff that said locomotive had exploded, or was about to explode; and plaintiff says that when he leaped from said cab window as aforesaid, it was in the nighttime and dark, and that said train was running upon defendant's track at said time, and near the town of Farmers, upon the Vincennes division of defendant's said line of railroad; and that said locomotive was running about fifty miles an hour, when he leaped from said cab window, as aforesaid. And plaintiff says that he was injured and caused to be injured as aforesaid by reason of the said negligence of said engineer in permitting the water to become too low in said locomotive boiler and thereby exposing said crown-sheet to great heat and by negligently turning the water into said boiler and upon said crown-sheet while said crown-sheet was in said highly heated condition, and thereby causing said boiler to explode and blow down the crown-sheet of said locomotive, and thereby frighten this plaintiff and caused him, as aforesaid to believe that said locomotive had exploded, or was about to explode, and thereby leap from said locomotive to save his life. The averments of the complaint state a cause of action either under the statutes of this State (subd. 4, § 8017 Burns 1914, Acts 1893 p. 294); Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 78 N.E. 1033, or under the Federal Employers Liability Act (Act April 22, 1908, c. 149, § 8657 U.S. Comp. Stat. 1913).
Where the complaint states a cause of action, under any statute it will be good as against a demurrer, for want of facts. Southern R. Co. v. Howerton (1914) ante 208, 105 N.E. 1025, 106 N.E. 369; Southern R. Co. v. Ansley (1910), 8 Ga.App. 325, 330, 68 S.E. 1086. It is settled by the decisions of the Supreme Court of the United States that where employes of an interstate railroad are injured while engaged in such interstate commerce that the Employers Liability Act of April 22, 1908, supersedes State laws upon the subject and controls the recovery. Missouri, etc., R. Co. v. Wulf (1913), 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann. Cas. 1914 B 134. It is also well settled by the authorities that where an employe of an interstate railroad is injured, but at a time when said employe was not engaged in interstate traffic a recovery may be had, if at all either under the...
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