Wabash R. Co. v. Erb

• Decision Date: 06 April 1905
• Docket Number: No. 5,164.,5,164.
• Citation: 36 Ind.App. 650,73 N.E. 939
• Parties: WABASH R. CO. v. ERB.
• Court: Indiana Appellate Court

36 Ind.App. 650

73 N.E. 939

WABASH R. CO.

v.ERB.

No. 5,164.¹

Appellate Court of Indiana, Division No. 1.

April 6, 1905.

Appeal from Circuit Court, Huntington County; James C. Branyan, Judge.

Action by John Erb against the Wabash Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. Fred France and Stuart, Hammond & Simms, for appellant. Lesh & Lesh and Branyan & Feightner, for appellee.

BLACK, J.

In the appellee's amended first paragraph of complaint against the appellant it was shown, after preliminary averments, that from May 15 to October 2, 1902, the appellee was an employé of the appellant, working in the bridge-building department; that on the day last above mentioned he worked for the appellant on what was known as the “Belden Bridge,” which was a short distance west of Andrews, Ind., at which time his home was at Huntington, Ind., where his family resided; that Huntington was on the line of appellant's railroad, and about seven miles east of the place where he was working on the bridge; that in the evening of that day, while returning from the place where he had been working on the bridge, to his home at Huntington, on a railway velocipede furnished to him by the appellant for that purpose, which he was at the time using at the instance and request of the appellant, he was carelessly and negligently run down and struck by a locomotive, commonly designated as a “switch engine,” at the time under control and operation of the appellant; that he was so struck by the engine at a point on the line of the appellant's railway about 1 1/2 miles west of Huntington, while proceeding eastward on the velocipede; that while going eastward on the velocipede and propelling it in the usual manner, the locomotive, drawing a tender, a steam shovel, and a caboose, under charge of the appellant's employés, approached from the rear of the appellee, or from the west, at the rate of 60 miles per hour; that no notice was given the appellee by the sounding of the whistle, ringing of the bell, or otherwise, of the approach of the locomotive, until it had reached a point within about 75 feet of the appellee, at which place the employés of the appellant in charge of said engine caused the whistle to sound, whereupon the appellee instantly undertook to throw himself from the velocipede to the side of the road, so as to avoid being struck by the engine, but on account of the high speed of the locomotive and its nearness to him at the time said notice was given him of its approach as aforesaid, which was the first knowledge he had of the approach thereof, he was unable to get out of the way, and thereupon was struck by the engine and thrown some distance to the south side of the track, and was thereby maimed, bruised, and injured in his limbs and body to such an extent as to render him temporarily unconscious and to require him to be confined to a hospital for treatment several months thereafter. His injuries were described, and it was further alleged that said injuries were caused by the negligence of appellant, in this: that said locomotive at the time of the accident was unequipped with any guard; that said accident occurred in daylight, and said employés in charge of said engine had a full and unobstructed view of the appellee for a distance of about one-half mile before reaching the point where he was struck, and after seeing him in time to have avoided the accident, by giving him notice of the approach of the train by the ringing of the bell or the sounding of the whistle, or by slacking the speed thereof in time to enable him to get off the track without injury, they failed to sound the whistle, or in any manner notify him of the approach of the engine, until too close to him to enable him to get out of the way of the train, as aforesaid, “and they failed and neglected to reduce the speed of said train, or to do anything to avoid said injury or accident, and were therebyguilty of gross negligence; that said employés wantonly and willfully caused said accident; that, after realizing plaintiff's perilous position, they failed to exercise ordinary care and caution to avoid the same.” After stating the extent of appellee's physical injury, it was alleged “that he has been damaged by said negligence of the defendants in the sum of,” etc. The appellant's demurrer for want of sufficient facts to this amended first paragraph of complaint having been overruled, it is earnestly contended on the behalf of the appellant that it does not show willful injury, and that it appears therefrom that the appellee was either a licensee or a trespasser on the railroad track, and therefore it is claimed that the appellant was not responsible for his injury.

The pleading must proceed upon some consistent theory, and it must be good, if at all, either as a complaint for injury willfully inflicted, or as a complaint for injury negligently caused; it cannot be upheld as proceeding upon the theory that the particular injury for which damages are sought was caused both willfully and negligently; that is, inadvertently. There is some confusion in the pleading, indicative, perhaps, of uncertainty in the mind of the pleader as to the theory to be adopted. Considering the language of the pleading in its ordinary meaning, and most strongly against the pleader, it cannot properly be construed as fully and sufficiently showing a cause of action for willful injury. This is plain enough, we think, without taking space to recapitulate, transpose, analyze, or group the averments. If the pleading is good, it must be because it is sufficient as a complaint for injury negligently caused. It may be said that it is shown sufficiently, though awkwardly, that the injury to the appellee alleged was caused by the negligence of the persons in the service of the appellant who had charge of the locomotive engine upon the railway, characterized also as negligence of the appellant, and that the appellant should be held liable under our employer's liability statute (section 7083, Burns' Ann. St. 1901), if the appellee is shown by the pleading to have been at the time of the injury an employé in the service of the appellant. In Bowles v. Indiana R. Co., 27 Ind. App. 672, 62 N. E. 94, 87 Am. St. Rep. 279, we said: “The general rule may be said to be that, where an employé is being carried by his employer in the conveyance of the latter to and from the work for which the former is employed, he is regarded, not as a passenger, but as an employé; though, if he is being carried merely for his own convenience, pleasure, or business, he is a passenger.” Where employés of a railroad company went some miles upon a hand car, repairing the railway, and towards evening, while returning upon the hand car to the place of starting, one of them was injured, the persons operating the hand car were treated as fellow servants. C., M. & St. P. R. Co. v. Artery, 137 U. S. 507, 11 Sup. Ct. 129, 34 L. Ed. 747. Where an employé, at the close of his day's work in the defendant's factory, was changing his clothing preparatory to going home, and was injured by reason of the fact that machinery was unguarded, it was held that the relation of master and servant continued to exist. Helmke v. Thilmany, 107 Wis. 216, 83 N. W. 360. In International, etc., R. Co. v. Ryan, 82 Tex. 565, 18 S. W. 219, the plaintiff was a bridge carpenter employed by the day by the railroad company. While sitting in a car provided as a sleeping car for the bridge gang by the railroad company, he was injured through negligence of an employé in charge of a switch engine which collided with the car, which was upon a side track, where it had arrived about 6 o'clock in the evening. His day's work consisted of 10 hours' labor. His time was his own after 6 o'clock. He had no contract for any particular length of time, and could have quit the employment of the railroad company at 6 o'clock. He was entitled to sleep in the car at the end of each day's work. He expected to go to work with the bridge gang next day, as usual. He was not working for the railroad company when he was injured, but was...