Wabash Railroad v. Hassett
| Decision Date | 19 February 1908 |
| Docket Number | 21,001 |
| Citation | 83 N.E. 705,170 Ind. 370 |
| Parties | Wabash Railroad Company v. Hassett, Administratrix |
| Court | Indiana Supreme Court |
Rehearing Denied May 13, 1908.
From Miami Circuit Court; Joseph N. Tillett, Judge.
Action by Catherine A. Hassett, as administratrix of the estate of Martin Hassett, deceased, against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals.
Reversed.
Stuart Hammond & Simms and Bailey & Cole, for appellant.
Cox & Andrews, for appellee.
Appellee, as administratrix of the estate of Martin Hassett, deceased, recovered a judgment of $ 6,500 against appellant for the wrongful death of said decedent, while in its employ. The cause was tried upon two paragraphs of complaint, and the sufficiency 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 freight-train in service at Newell, Illinois, and, having completed his day's work at about 6:10 o'clock p. m., was en route to the roundhouse at Tilton, Illinois, 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 Railroad Company, and at 6 o'clock p. m. started for Mt. Carmel, pulled by engine No. 444, in charge of George Maloney, fifteen minutes ahead of an 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, No. 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 named Crabill, in appellant's employ; that decedent's work-train was following about five minutes after engine No. 825; that upon signal Crabill stopped said engine near the caboose of the extra freight-train; that engine No. 825 was a big freighter, was not protected by lights, had no light on the back of the tank, and its bulk hid the signal lights on the caboose of said extra freight; that engine No. 835 was backing tank first and pulling decedent's extra work-train, with the caboose next to the engine, followed by other cars; that engine No. 835 collided with engine No. 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, 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 was 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 said Crabill carelessly and negligently ran and directed said engine without having the same properly protected by a 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 were caused directly by the negligence of said Crabill in running and directing said switch-engine without having the same properly protected by headlight or other lights upon the tank, and that the decedent had no means of knowing, and did not know, that engine No. 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. The complaint sets out in full an act of the legislature of the state of Illinois, in full force and effect October 13 and 14, 1905, 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 (§ 285 Burns 1908, Acts 1899, p. 405), but concludes 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 October 13, 14, 1905, employes of railroad corporations operating lines of railroad in said state were fellow servants only where such employes were brought together in direct cooperation in the performance of a particular work, and were directly cooperating 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 employes, as in case where they were directly cooperating in a particular work;" that the decedent, in the performance of his work as such conductor, was not brought in direct cooperation with said engine foreman Crabill, and at the time of the collision the decedent and Crabill were not directly cooperating 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 cooperation in the performance of a particular work and were directly cooperating in a particular work, and they were not fellow servants; that the decedent was twenty-nine 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 the 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 the 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 No. 825; but 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 (1860), 14 Ind. 595, 77 Am. Dec. 72; Gann v. Worman (1880), 69 Ind. 458; Burns v. Grand Rapids, etc., R. Co. (1888), 113 Ind. 169, 15 N.E. 230; Jackson v. Pittsburgh, etc., R. Co. (1895), 140 Ind. 241, 49 Am. St. 192, 39 N.E. 663; Hilliker v. Citizens St. R. Co. (1899), 152 Ind. 86, 52 N.E. 607; 13 Cyc. Law and Proc., 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 (§ 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., R. Co. v. Jones (1902), 158 Ind. 87, 62 N.E. 994; Baltimore, etc., R. Co. v. Reed (1902), 158 Ind. 25, 56 L.R.A. 468, 92 Am. St. 293, 62 N.E. 488; Jackson v. Pittsburgh, etc., R. Co. (1895), 140 Ind. 241, 39 N.E. 663; Cincinnati, etc., R. Co. v. McMullen (1889), 117 Ind. 439, 10 Am. St. 67, 20 N.E. 287; Burns v. Grand Rapids, etc., R. Co., supra.
Each paragraph of the complaint in this case, as already shown, sets forth a statute of Illinois, in substance the same as the statute of this State upon that subject. The second paragraph alleged 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. The fourth paragraph alleged that while acting as such conductor, decedent was killed by the negligence of an engineer and the foreman of an engine, operating engines 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 (1905), 164 Ind. 507, 69 L.R.A. 163, 73 N.E. 67; Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L.R.A. 460, 68 N.E. 262; Southern Ind. R. Co. v. Martin (1903), 160 Ind. 280, 66 N.E. 886; Thacker v. Chicago, etc., R. Co. (1902), 159 Ind. 82, 59 L.R.A. 792, 64 N.E. 605; Robertson v. Chicago, etc., R. Co. (1896), 146 Ind. 486, 45 N.E. 655; Evansville, etc., R. Co. v. Tohill (1895), 143 Ind. 49, 41 N.E. 709; Clarke v. Pennsylvania Co. (1892), 132 Ind. 199, 17 L.R.A. 811, 31 N.E. 808; Spencer v. Ohio, etc., R. Co. (1892), 130 Ind. 181, 29 N.E. 915; Capper v. Louisville, etc., R. Co. (1885), 103 Ind. 305, 2 N.E. 749; Gormley v. Ohio, etc., R. Co. (1880), 72 Ind. 31.
If under the unwritten or common law of Illinois the decedent and those to whose negligence his death is attributed were not fellow servants, it became...
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