Young v. Citizens' St. R. Co.
| Decision Date | 21 May 1897 |
| Citation | 148 Ind. 54,47 N.E. 142 |
| Parties | YOUNG v. CITIZENS' ST. R. CO. |
| Court | Indiana Supreme Court |
The principal contention in support of the petition for a rehearing is that we erred in applying the same rule to the acts of the appellee as to contributory negligence that is applicable to the ordinary traveler over the streets. It is contended with much vigor and ability that the authorities cited in support of the original opinion are not applicable, because they, it is insisted, apply to and announce the rule applicable to ordinary travelers; that appellant was not an ordinary traveler or pedestrian over the street, and hence a different rule should be applied to him.
Appellant's principal contention in his original brief was that there is a distinction between negligence cases against steam railways and street railways as to the degree of care required of the complaining party. But now his principal contention is that he was not an ordinary traveler, and hence the rule in such cases is not to be applied to him; and Shoner v. Pennsylvania Co., 130 Ind. 170, 28 N. E. 616, and 29 N. E. 775, and a large numberof cases of that class, are cited in support of the contention. That case, and the class of cases cited in it, and those cited by appellee's learned counsel, are cases where the defendant company had employed the plaintiff to work on the track of its railroad, or in other positions exposed to danger, making it the duty of the servant to give his attention to his work, and especially where such duty is of an absorbing nature liable to engross the entire attention of the servant. There can be no doubt that in that class of cases the law exacts a greater degree of care and caution on the part of the master, and a much less degree on the part of the servant, than in other cases. It would be extremely unjust, and therefore unlawful, to permit the master to require of his servant the performance of duties on the track of its railroad, the very nature of which must necessarily engross his whole mind and attention, and then require of him, while thus engaged, the same close observation for his safety that would be required of him in other cases. But no such case is presented here, and no such relation existed. The appellant owed no duty to the appellee, and vice versa. The appellant was engaged, it is true, in laying gas pipe in a trench about three feet north of the north track of the appellee's street railway; but he was in the employ of another and an entirely different corporation, the Manufacturers' Natural Gas Company. If, in his work, he found it convenient to use the appellee's street-railroad track to walk up and down, back and forward, or across the same, he used it as all other people had a right to use it. He used it because it was a part of a public street, subject to which user the company held its franchise; otherwise, he would have been a trespasser. He used it just as any other person had a right to use it. It was not the work he was engaged in that gave him the right to use the appellee's track, but it was because the track was...
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