Whitcomb v. Standard Oil Co.

• Decision Date: 28 November 1899
• Citation: 153 Ind. 513,55 N.E. 440
• Parties: WHITCOMB v. STANDARD OIL CO.
• Court: Indiana Supreme Court

153 Ind. 513

55 N.E. 440

WHITCOMB

v.STANDARD OIL CO.

Supreme Court of Indiana.

Nov. 28, 1899.

Appeal from circuit court, Porter county; John H. Gillett, Judge.

Action by James E. Whitcomb against the Standard Oil Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Olds & Griffin, for appellant. Alfred D. Eddy, for appellee.

HADLEY, C. J.

The appellant sued the appellee for damages for the loss of his hand, while in the employ of appellee, engaged in attempting to couple cars. The complaint, filed in May, 1897, alleges that at the time of the grievances complained of appellee, in connection with its oil plant in Lake county, Ind., operated a railroad, and handled all sorts of freight cars which it received from and sent out over its own and other railroads; that it conducted its business in an unusual, negligent, and extrahazardous manner, in this: that it controlled, used, and operated in a negligent manner a large number of cars of various styles and kinds; that some of them were of defective construction, and out of repair; that some of them were negligently constructed with the body of the car and the drawbars and couplings of various heights, and some so constructed with jams or buffers on either side of the drawbars, some parallel with, and some extending above, the drawbars, which rendered the coupling of the cars more difficult and dangerous, and is a style of cars and a system of coupling abandoned and no longer in use by well-regulated railroads; that appellant had no notice or knowledge of the kinds of couplings he would be called upon to make, and had not been notified of the hazardous character of the couplings; that on the 10th day of April, 1897, the plaintiff, by and under the direction of the head switchman or yard foreman in charge of making up trains and coupling of cars, and while in the line of duty, and without negligence, attempted to couple two cars, one of which had been negligently cut loose and kicked onto the switch at a high and dangerous rate of speed, and negligently allowed to run of its own momentum up to and against a standing car upon defendant's said switch, and, not having been notified by the defendant, or informed, the plaintiff did not know whether the couplings, links, and pins in the cars to be coupled were in good repair or defective, or whether the drawbars and couplings on the cars were uniform or otherwise; that one of the drawbars had a dog in it, and the other did not, and the drawbar on one of the cars had a link and pin in it that was defective and crooked, so that it could not be removed without appliances, and was negligently suffered by defendant to remain bent and defective; that there were buffers on either side of the drawbars, extending above, that came together in making a coupling, of which the plaintiff had no previous notice or knowledge; that, as he advanced to make the coupling, using due care, he observed that the drawbar in the stationary car had a dog in it to hold the link horizontal, and that the moving car had a link in it, but no dog; that he endeavored to remove the link from the moving car to place it in the other, but found it fast by reason of being bent, or too large, and, to accomplish the coupling as the link entered the drawbar of the other car, he attempted to tip the pin into the link, and, not observing the buffers, and while his hand was elevated, the buffers came together, and caught and crushed his hand. There was no demurrer to the complaint, and the case went to the jury upon the general denial; and at the close of appellant's evidence, upon motion of appellee, the court directed the jury to return their verdict for the defendant.

The only error assigned is upon the overruling of appellant's motion for a new trial, and the only question propounded thereunder involves the construction of two provisions of the act of March 4, 1893 (Acts 1893, p. 294), commonly known as the “Co-employés' Liability Act.” It is affirmed that, since the act of March 7, 1895 (Acts 1895, p. 148), repealing section 2 of the act of 1893 (being section 7084, Burns' Rev. St. 1894), the remaining section, to wit, section 7083, Burns' Rev. St. 1894, should receive a broader construction than was justifiable while the two original sections stood together; the contention being that the repeal of section 7084 should be accepted as evidence of legislative intent that the remaining section 7083 should be construed as overthrowing the common-law doctrine of assumed risks so far as to charge the master with the assumption of all risks from defective machinery and appliances while the servant is engaged in performing acts under the direction of a superior, though the injured servant saw and knew the nature and extent of the peril, or might have done so by the exercise of reasonable care. The statute, and the two specifications thereunder brought under review, are as follows: “Section 1. That every railroad or other corporation, except municipal, operating in this state, shall be liable for damages for personal injury suffered by any employé while in its service, the employé so injured being in the exercise of due care and diligence, in the following cases: First: When such injury is suffered by reason of any defect in the condition of ways, works, plant, tools and machinery, connected with or in use in the business of such corporation, when such defect was the result of negligence on the part of the corporation or some person entrusted by it with the duty of keeping such ways, works, plant, tools and machinery in proper condition. Second: When such injury resulted from the negligence of any person in the service of such corporation to whose order or direction the injured employé at the time of the injury was bound to conform and did conform.” We know of no warrant for this court to accept the intention of the assembly of 1895 as controlling the construction of a statute passed by the assembly of 1893, especially where we are required to determine that intention by implication; and we must, therefore, confine ourselves to approved rules of construction, and look rather to the intent of the legislature that gave the statute origin, if there is anything obscure in its provisions. But there is nothing obscure in the provisions before us, and nothing in them to justify the contention that the employé is thereby relieved from that caution and care of himself required by the common law. There are no express words to authorize such construction, and a principle of the common law so long established and universally approved cannot be subverted by implication. The construction contended for would constitute a railroad company the absolute insurer of the safety of its employés against the ordinary and usual perils incident to the unexpected and excusable impairment of its ways, works, etc.; and to thus invest the employé with the sense of indemnity would, in large measure, strike down that salutary principle of public policy which requires every one in every situation to be alert in the preservation of life and limb. We held in Railway...