192 Ind. 199 | Ind. | 1922
This was an action by appellee against appellant to recover damages for personal injuries for which appellant was alleged to be responsible. The complaint was in two paragraphs. A general denial to each of those paragraphs formed the issue submitted to a jury for trial which resulted in a verdict and judgment in favor of appellee for $8,000. Appellant has assigned, and relies on alleged errors of the court, (1) in overruling its motion to make each paragraph of the complaint more specific; (-2) in overruling its demurrer to each paragraph of the complaint for want of facts, and (3) in overruling its motion for a new trial.
The first paragraph of the complaint is based upon the Employers’ Liability Act. Acts 1911 p. 145, §8020a et seq. Burns 1914. From this paragraph it appears that on October 24, 1917, appellant, an Indiana corporation employing more than five persons, was engaged in operating a steam railroad through the county of Jennings and other counties of this state. On the date stated it operated a freight train on its line of road with one Ed Jackson as conductor in charge thereof, which train, in one of its cars, carried a machine weighing about 2,000 pounds, and known as an ensilage cutter.
The second paragraph proceeds upon the theory of an action at common law, and in substance alleges that appellee was a one-seventh owner of the machine and as such owner was present to receive the same, and who, upon the request of Jackson as conductor, undertook to assist in unloading it. The negligence charged is the same as that charged in the first paragraph.
The first paragraph of the complaint proceeded upon the theory that Jackson, as conductor in charge of appellant’s train and of its work of unloading the ensilage cutter, was authorized to employ assistants, in that, a necessity existed for assistance to do the work safely; that appellant, in the activities of unloading the machine, was represented by Jackson, at whose request appellee engaged in the work, thus entitling him to the same protection afforded other servants of appellant.
The implied authority of a railroad conductor to employ a third person in ease of a temporary existing emergency — a physician for an injured brakeman — has been considered and affirmed by this court. Terre Haute, etc., R. Co. v. McMurray (1885), 98 Ind. 358, 49 Am. Rep. 752; Terre Haute, etc., R. Co. v. Brown (1886), 107 Ind. 336, 8 N. E. 218; Louisville, etc., R. Co. v. Smith (1890), 121 Ind. 353, 22 N. E. 775, 6 L. R. A. 320. While the emergency in these cases was exceedingly potent, yet'they recognize the principle supporting the cases above cited from other jurisdictions.
At the time appellee received his alleged injuries Jackson was in charge of the train and its crew. He was seeking to accomplish an end — the unloading of the machine — which was within the scope of his alleged employment. So it is said: “Where a servant is engaged in accomplishing an end which is within the scope of his employment, and while so engaged adopts means reasonably intended and directed to the end, which result in injury to another, the master is answerable for the consequences, regardless of the motives which induced" the adoption of the means; and this, too, even though the means employed were outside of his authority, and against the express orders of the master.” Pittsburgh,
When appellee accepted Jackson’s request and entered upon the work he had the right to expect that Jackson, as the representative of appellant, would use ordinary care for his safety, and certainly so, in so far as he might be affected by the use of appliances furnished. The fact that there may have been other and more safe ways and means of handling the machine will not shield appellant from the negligence here charged, for it was appellant, through Jackson, and not appellee, who chose the place, adopted the appliances, and the manner of doing the work.
The second paragraph, among other facts, states that appellant was to unload the machine from its car at the town of Commiskey and that appellee as part owner thereof was there to receive it. He assisted in unloading the machine at the request of Jackson, who, as appellant’s representative, was in charge of that work. He was injured while thus engaged, through the alleged negligence of Jackson. Such being the status of the parties it is clear that appellee, at the time he received the injury of which he complains, was neither a mere volunteer, a trespasser, nor a mere licensee. Hill v. Chicago, etc., R. Co. (1919), 188 Ind. 130, 122 N. E. 321; Empire Machinery Co. v. Brady (1896), 164 Ill. 58, 45 N. E. 486; Id., 60 Ill. App. 379. Hence, the doctrine of respondeat superior applies. In the case of Welch v. Maine, etc., R. Co. (1894), 86 Me. 552, 565, 30 Atl. 116, 117, 25 L. R. A. 658, it is said: “But where one has an interest in the work, either as consignee or the servant of a consignee, of in any other capacity, and, at the request or with the consent of another’s servants, undertakes to assist them, he does not do so at his own risk, and, if injured by their carelessness, their master is responsible.” Meyer v. Kenyon-Rosing Machinery
Appellant, in the exercise of ordinary care, under all of the circumstances here shown, was in duty bound only, as an ordinarily prudent person, to furnish such appliances and take such precautions reasonably necessary to avoid exposing appellee to unnecessary peril. The pleaded facts show that appellant failed to perform its duty in the particulars mentioned, and the demurrer was properly overruled.
Green was appellant’s station agent at the town of Commiskey at the time of the accident, and had been for about two years prior to that day, and in answer to a question by appellee, said that “it has frequently been the practice that conductors would' ask bystanders to help unload heavy freight.”
The ensilage cutter was consigned to Lurton, a merchant who resided in the town of Commiskey. For fifteen years prior to 1913, Lurton was the agent of appellant at Commiskey, and in answer to a question, testified that “it is a very common occurrence for a train crew to ask someone to help with heavy freight.”
Appellant objected to each of the questions calling for the practice of conductors requesting bystanders to help unload heavy freight, as they were propounded to the witnesses, for the reason that they did not tend to prove a fact within the issues and that any such practice would be contrary to law. Motions were made to strike out each of the answers for practically the same reasons urged in support of the objections to the questions.
True, appellee’s complaint is silent as to the custom and practice of conductors calling on bystanders to assist in unloading heavy freight. It is also true, as we have said, that the first paragraph of his complaint proceeded upon the theory of an emergency existing for additional help to unload the machine, and recovery was
The obvious purpose of. the question under consideration was to show custom, practice or usage by railroads generally in this state as to their disposition of cars or bulky shipments of freight at point of destination. It pertained to the methods in use by such carriers, at such point prior to a release of such freight to the consignee. These were facts aside from Rule 8-B, and, for aught appearing, facts not covered by any rule. It referred to the practice of such carriers in the ordinary course of their business when relying upon the terms of the rule as to the duty of unloading such shipments. True, the question referred to Rule 8-B, but in that respect it merely identified the character of freight covered by the inquiry. A custom or practice may be of such universal prevalence as to become a part of the existing law and of which courts will take judicial notice, but where a custom or practice is circumscribed and limited in its application, it must be supported by proof, and, when well established, it is as obligatory on the objects of its operation as would be a general law. With this view of the question, it did not invite the witness to interpret or give the rule any particular construction, nor call for evidence tending to prove a custom or practice in contravention of it.
In this case the complaint shows, and it is supported by uncontradicted evidence, that appellant, at the town of Commiskey, maintained a platform and at least three tracks, each of which had a designated purpose. Charges of negligence are based upon appellant’s omission to use certain of these tracks for unloading the machine. From the undisputed evidence it appears that the platform was ten or twelve inches high composed of brick and extended from the station a short distance along the main track; that the ensilage cutter was consigned to
Now, if it be admitted that it was the duty of the owner of the machine, in this case the consignee, to unload it, it was proper, for appellee to show any custom or practice at destination points universally followed by carriers in handling freight covered by the rule.
The witness in this case was shown to be qualified to answer the question. The question, under the circumstances of this case, was a proper one and a responsive answer was properly allowed to go to the jury. ■
The record on this subject shows, that on May 27, 1918, the trial of this cause began, and on the following day the evidence was concluded, the jury instructed, and a verdict returned. On this last date, appellant in writing requested that the court give its instructions to the
The facts thus disclosed by the transcript, although indicating lack of care in the preparation of the original entries, must be regarded as sufficient to show a substantial compliance with an act concerning civil pro
As to the requested instructions, it sufficiently appears that the court indicated “before instructing the jury, by a memorandum in writing at the close” of these instructions “the numbers of those given and of those refused,” (Our italics) which memorandum was signed by the judge. It affirmatively appears that the court, as requested, gave all of the instructions tendered by appellee and seven of the fourteen instructions tendered by appellant. From this action it would seem that all instructions were tendered in time, thereby distinguishing the case at bar from the cases cited by appellee, namely ': Fox v. Barekman (1912), 178 Ind. 572, 99 N. E. 989; Stamets v. Michenor (1905), 165 Ind. 672, 75 N. E. 579, and Supreme Tent, etc. v. Ethbridge (1909), 43 Ind. App. 475, 87 N. E. 1049. The record under consideration does not sustain appellee’s contentions.
Appellee also insists, that appellant’s original brief does not set out that part of its motion for a new trial claiming error of the court in giving any of appellee’s instructions or in refusing any of appellant’s requested instructions. Since the filing of appellee’s brief appellant obtained leave from this court to file a corrected brief in the particulars mentioned, and so filed the same. Appellee has not answered the amended brief, consequently we have no suggestions from him on the merits of the questioned instructions.
In the case at hand the cutter had arrived at its destination, and, under Rule 8-B, it was the duty of the consignee to unload it. The duty as fixed by this rule was equally obligatory on both appellant and the consignee, of the shipment. As between them, as claimed by appellant, it was a law for their guidance. In connection with this rule we are confronted with evidence undisputed that it was the universal custom of railroads to place the car containing a shipment, as in. this case, at some convenient point for the consignee to unload and to notify him. Thus it may be said that an interstate shipment within Rule 8-B, is in interstate transit from loading to unloading points, and ceases to be such only when placed under consignee’s control for unloading. When this is done, a railroad carrier has completed its last stage of service, arid, as to such shipment, it is no longer- engaged in interstate transportation. Hence, any act by such carrier thereafter with reference to the unloading of such shipment, or by any of its employes or others called by it to assist in such act, would not be a furtherance of or an engaging in interstate transportation within the meaning of the federal act. Appellant, by its representative — the conductor— decided to and did actually-enter upon the work of unloading the cutter while the car containing it was a part of the train standing on the side track, and work which, under the evidence, all must agree was that of another, had appellant performed its final act of transportation
The court was also right in refusing instructions Nos. 8 and 11, as they were pertinent only in a case within the federal act.
Appellee requested seven instructions, all of which were given. Of these instructions, appellant claims that six were erroneous. It objects to the first two for the reason that neither refers to the facilities of defendant for unloading the machine; that the jury was allowed to determine, unaided, the. question of an emergency; that each was misleading and ignored the idea of an assumption of risk. Instruction No. 1 referred to the finding of certain facts which might have been influential with the jury in determining an existing emergency, without any admonishment with reference to its consideration of the instrumentalities furnished by appellant to its employes for unloading the machine. While the instruction may be subject to criticism for its fail
i The assumption of risk objection applies more properly to instruction No. 2 and is the sole objection to instruction No. 3, and failure to tell the jury that it might consider contributory negligence of appellee in mitigation of his damages is urged against instruction No. 6. As the first paragraph of complaint rests upon our local Employers’ Liability statute, supra, a charge, under the circumstances here shown, that appellee assumed the risk or that the jury might consider acts of contributory negligence of appellee in diminution of his damages, would have been error. Hence, appellant’s objections to these instructions were not well taken.
Instruction No. 4 was on the subject of the master’s duty to furnish his employes with reasonably safe and suitable tools and appliances and to make proper inspection of the same. The sole objection urged against this instruction is, that it requires the master to “inspect all tools, whether intricate or simple.” We are satisfied the jury understood from this charge that the master was only required to use the care of an ordinarily prudent and careful person under all the circumstances to keep his tools and appliances in a safe condition for the use of his employes in performing their duties. It was not error to give this instruction.
Instruction No. 5 is limited to the second paragraph of the complaint and is in accord with our ruling as to the sufficiency of that paragraph. It told the jury, in substance, that if plaintiff had an interest in the cutter and by reason thereof was on defendant’s right of way with its knowledge and consent, then he would not be a trespasser and defendant would be bound to exercise ordinary care for his safety, and would be liable for any
Finally, it is insisted that the verdict is not sustained by sufficient evidence. Appellant iñ support of this contention insists that under the evidence this was a case within the federal act, and therefore the verdict was contrary to law. The evidence is undisputed. We have carefully considered it and concluded that what we have said, in ruling on other points presenting this same question, is more or less applicable to the points made in support of this assignment. Without further extending this opinion, we hold that appellant’s insistence on the evidence must be denied.
Judgment affirmed.
It having been suggested that appellee died between the time of submission of this cause and the affirmance of the judgment, it is now therefore ordered that the mandate “Judgment affirmed” heretofore entered be modified to read — Judgment affirmed as of the date of submission,
June 8, 1922.