Wabash R. Co. v. Hassett

• Decision Date: 19 February 1908
• Docket Number: No. 21,001.,21,001.
• Citation: 83 N.E. 705,170 Ind. 370
• Parties: WABASH R. CO. v. HASSETT.
• Court: Indiana Supreme Court

170 Ind. 370

83 N.E. 705

WABASH R. CO.

v.HASSETT.

No. 21,001.

Supreme Court of Indiana.

Feb. 19, 1908.

Appeal from Circuit Court, Miami County; J. N. Tillett, Judge.

Action by Catharine Alice Hassett, administratrix, against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions.Stuart, Hammond & Simms, for appellant. Cox & Andrews, for appellee.

MONTGOMERY, J.

Appellee, as administratrix of the estate of Martin Hassett, deceased, recovered a judgment of $6,500 against appellant for a wrongful death of said decedent while in its employ. The cause was tried upon two paragraphs of complaint, and the sufficiency of each of these paragraphs is the first question presented for our decision.

The second paragraph of amended complaint averred: The appointment of appellee as such administratrix by the Miami circuit court. That appellant is a corporation operating a line of railroad through the states of Indiana and Illinois. That on October 13, 1905, decedent was in appellant's employ as conductor of an extra work train in service at Newell in the state of Illinois, and, having completed his day's work, at about 6:10 p. m. was en route to the roundhouse at Tilton, Ill., for the night. That an extra freight train on the Cairo Division of the “Big Four” had on said day been made up in the yards of the Wabash and at 6 p. m. started for Mt. Carmel, pulled by engine 444, in charge of George Maloney, 15 minutes ahead of said extra work train, and, pulling slowly up the hill toward Tilton, stopped one-half mile east of the yard office to cross over and take the “Big Four” tracks which began at that point. That appellant's engine 825 had been switching in the Danville yards and was following said freight train up the hill, on the way to the Tilton roundhouse for the night, and was then and there in charge and control of a foreman in appellant's employ named Crabill. That decedent's work train was following about five minutes after engine 825. That upon signal Crabill stopped said engine near the caboose of the extra freight train. That engine 825 was a big freighter, and was not protected by lights, and had no light on the back of the tank, and that its bulk hid the signal lights on the caboose of said extra freight. That engine 835 was backing, tank first, and pulling decedent's extra work train, with the caboose next the engine followed by other cars. That engine 835 collided with engine 825, which collision was caused by the negligence of said engine foreman Crabill in failing to display proper lights on the tank of his engine. That the decedent was standing on the platform of his caboose at the time of the collision, and was thereby fatally injured, from which injuries he died October 14, 1905, at Danville, in the state of Illinois. That by the rules of appellant company all switch engines were required to have a foreman in charge when engaged in switching and when going to and from the roundhouse, and no switch engine should be permitted to run upon appellant's tracks in yard limits or elsewhere without a headlight upon either end at any hour of the day when the absence of light made it necessary to have headlights to protect such engine. That appellant's engine foreman (Crabill) carelessly and negligently ran and directed said engine without having the same properly protected by headlight on the tank, or other lights which could be distinguished by the engineer of the approaching train. That said collision and the death of appellee's intestate was caused directly by the negligence of said Crabill in running and directing said switch engine without having the same properlyprotected by headlight or other lights upon the tank, and that the decedent had no means of knowing, and did not know, that engine 825 was upon the track in front of his train, or that there was or would be any obstruction in the way of his train. That by an act of the Legislature of the state of Illinois, in full force and effect October 13 and 14, 1905, it was provided, as follows: The complaint sets out in full the statute giving a right of action for death caused by the wrongful act, neglect, or default of another, which, in substance, is the same as the statute of this state (section 285, Burns' Ann. St. 1901), but concluding in these words: “Provided further, that no action shall be brought or prosecuted in this state to recover damages for a death occurring outside of the state,” etc.

The complaint further alleges: “That by the common law of the state of Illinois on the 13th and 14th days of October, 1905, employés of railroad corporations operating lines of railroad in said state were fellow servants only where such employés were brought together in direct co-operation in the performance of a particular work and were directly co-operating with each other in a particular work at the time, or in cases where their usual duties brought them into habitual association which was sufficiently personal to furnish the same opportunity and power to exercise an influence upon each other promotive of a proper caution upon the part of such employés, as in case where they were directly co-operating in a particular work.” That the decedent in the performance of his work as such conductor was not brought in direct co-operation with said engine foreman Crabill, and at the time of the collision the decedent and Crabill were not directly co-operating in the performance of any particular work, and they were not by their usual duties brought into habitual association where such association was sufficiently personal to furnish the same opportunity and power to exercise an influence upon each other and induce caution upon the part of each as in case where they were brought together in direct co-operation in the performance of a particular work and were directly co-operating in a particular work, and they were not fellow servants. That the decedent was 29 years of age, in good health, vigorous, and active, and at the time of his death able to earn $100 per month, and had a wife and children dependent upon him.

The fourth paragraph of amended complaint contains the same general facts, and avers specially that Maloney was in appellant's employ as engineer and Crabill as engine foreman, and that by reason of a curve in the track it became and was their duty under rules of appellant then in force to send out a flagman with stop signal to a sufficient distance to insure full protection, and said flagman by proper signals should have flagged an approaching train, or placed two torpedoes on the rail of the track to warn such train of the position of said engine 825, and that said engineer and foreman neglected and failed to give any stop signal to decedent's train, and by reason of their negligence in that respect the collision occurred.

No action would lie at common law for damages resulting from the death of a human being, caused by the negligence or wrongful act of another. Long v. Morrison, 14 Ind. 595, 77 Am. Dec. 72;Gann v. Worman, 69 Ind. 458;Burns v. Grand Rapids, etc., R. Co., 113 Ind. 169, 15 N. E. 230;Jackson v. Pittsburgh, etc., Ry. Co., 140 Ind. 241, 39 N. E. 663, 49 Am. St. Rep. 192;Hilliker v. Cincinnati, etc., Ry. Co., 152 Ind. 86, 52 N. E. 607; 13 Cyc. 310, and cases cited. The injury and death for which this action was brought occurred in Illinois, where the common law is presumed to prevail. Our statute (section 285, supra) conferring a right of action for death by wrongful act has no extraterritorial force, and it was necessary that appellee, as the basis of her complaint, plead a statute of that state creating a right of action for death caused by negligence. Baltimore, etc., Ry. Co. v. Jones, 158 Ind. 87, 62 N. E. 994;Baltimore, etc., Ry. Co. v. Reed, 158 Ind. 25, 62 N. E. 488, 56 L. R. A. 468, 92 Am. St. Rep. 293;Jackson v. Pittsburgh, etc., Ry. Co., 140 Ind. 241, 39 N. E. 663, 49 Am. St. Rep. 192;Cincinnati, etc., R. Co. v. McMullen, 117 Ind. 439, 20 N. E. 287, 10 Am. St. Rep. 67;Burns v. Grand Rapids, etc., R. Co., 113 Ind. 169, 15 N. E. 230. Each paragraph of the complaint in this case, as already shown, sets forth a statute of the state of Illinois, in substance the same as the statute of this state upon that subject. The second paragraph charged that while acting as conductor upon a freight train the decedent was killed by the negligence of an engine foreman operating an engine upon the same track, and the fourth paragraph alleged that while acting as such conductor decedent was killed by negligence of the engineer and foreman of an engine operated upon the same track. Under the common law as declared and administered in this state the decedent and said engineer and foreman were fellow servants, and no action could be maintained for a death caused by the negligence of such fellow servants. Dill v. Marmon, 164 Ind. 507, 73 N. E. 67, 69 L. R. A. 163;Southern Ind. Ry. Co. v. Harrell, 161 Ind. 689, 68 N. E. 262, 63 L. R. A. 460;Southern Ind. Ry. Co. v. Martin, 160 Ind. 280, 66 N. E. 886;Thacker v. Chicago, etc., R. Co., 159 Ind. 82, 64 N. E. 605, 59 L. R. A. 792; Robertson v. Chicago, etc., R. Co., 146 Ind. 486, 45 N. E. 655;Evansville, etc., Ry. Co. v. Tohill, 143 Ind. 49, 41 N. E. 709, 42 N. E. 352;Clarke v. Penn. Co., 132 Ind. 199, 31 N. E. 808, 17 L. R. A. 811;Spencer v. Ohio, etc., Ry. Co., 130 Ind. 181, 29 N. E. 915;Capper v. Louisville, etc., Ry. Co., 103 Ind. 305, 2 N. E. 749;Gormley v. Ohio, etc., Ry. Co., 72 Ind. 31. If under the unwrittenor common law of Illinois the decedent and those to whose negligence his death is attributed were not fellow servants, it became necessary to plead such law as a fact in order to make a good complaint. Such foreign law, as in case of any other fact, must be pleaded with such distinctness that the court may judge of its effect. 9 Ency. Pl. & Prac. 543.

Appellant's counsel insist that demurrers to each paragraph of complaint should have...