13 Ind. App. 485 | Ind. Ct. App. | 1895
Lead Opinion
Since the rehearing was granted, the case has been fully and ably presented to the court on oral argument. Great diligence and research have also been shown by the learned counsel in the exhaustive briefs filed for our consideration. W e have given the many questions discussed careful consideration, and are of the opinion that the decision of the case turns on the question whether the special verdict shows that the decedent was in the pump house in the line of his duty by implied invitation of the appellant at the time he was injured.
•It is alleged in the complaint, in substance, that the decedent was in the employ of the appellant as a section hand engaged in the repair of the road bed and tracks, and that while engaged in that service and in the' line of his duty, he was by invitation of the appellant, eating his dinner in the pump house, where he was injured through the negligence of the appellant by reason of the explosion of a defective boiler. The complaint clearly proceeds upon the theory that he was injured while eating his dinner in the pump house. It clearly appears that he was not engaged in the actual work of repairing the road bed and tracks at the time he was injured. The controlling question the court is required to determine is whether, under the circumstances, eating Ms dinner on the premises where he was at work is
The first specification of the special verdict states that the appellant owned and operated a line of railway through the town of Covington, on the 17th day of February, 1893, and that it is the owner of a pump house on the line of its railway. The other specifications of the special verdict, omitting the formal parts and the conclusion, read as follows: “(2) That at, and for a long time prior to said date, the defendant pumped water at said pump house into its water tank, and kept in said pump house a steam engine and boiler, whereby it furnished the power for pumping said water. (3) That said pump house was a small building situated about thirty (30) feet south of the main track of defendant’s road, and about thirty (30) feet distant from the west end of defendant’s depot, at said city, and was in plain sight at all times of said main track, and of trains passing-thereon, and in plain sight of the platform at the west end of said depot. (4) That said boiler was an upright boiler, about three feet in diameter, and consisted of an inclosed, cylinder of boiler iron, with a perpendicular cylinder inside thereof, said boiler being heated by fire kept and maintained in said inside cylinder; that said boiler was kept about the center of said building, so as to leave a considerable space on all sides of it, and there was in said building also a vacuum pump, and there was also kept in said building a bench. (5) That the intestate, William Manifee, entered into the employ of the de
Counsel for appellant insist that it was entitled to judgment for the following reasons: (1) That said William Manifee was a mere licensee, to whom appellant owed no other duty than that of doing him no willful injury; that he was in the pump house, not in the discharge of the duties of his service, but for his own convenience. (2) That appellant was under no legal duty to the intestate at the time he was injured ; that he was not in his working place; that at the time the relation of master and servant did not exist. (3) That the con
It may be conceded that the general rule is that after work hours the relation of master and servant does not exist, and the employe occupies the position of a stranger to the employer; and also that ordinarily, during the intervals of work for rest and refreshment, the employer owes no duty to the employe; but the question is whether these rules are applicable in cases where so brief an interval is allowed the employe in which to eat his dinner that he is required of necessity, in compliance with the rules and regulations of the employer, to remain on the premises for that purpose. It is also true that a person upon the premises of another by consent, permission or acquiescence is not necessarily there by invitation, either express or implied. If a person is on the premises of another by mere permissive privilege, he is a mere volunteer or bare licensee, and the owner owes him no duty to make the place safe, and the licensee, in going on there, assumes all the risks. It is the duty of the master to have the premises reasonably safe in all parts thereof where the employe is likely to go in the performance of the service and matters incident thereto. As to such places, the servant is on the premises by invitation, either express or implied. In this case it is clear that the decedent was, on the day in question, rightfully on the premises of appellant, while he was engaged in the per
In this connection, it should be remembered, the finding shows that the interval of thirty minutes was allowed the employes for dinner. It is also found that the time so allowed the employes for that purpose was too short to enable them to leave the premises. There was, therefore, an implied invitation to said decedent by the appellant, under the circumstances, to eat his dinner on the premises. When, as in this case, so brief an interval is allowed the employe in which to eat his dinner that he cannot leave the premises of his employer for that purpose, his act in eating his dinner on the premises is an incident to the service. The mere fact that William Manifee was not under the circumstances at work as a section hand on the track of the railroad at the moment he was injured, is not conclusive that the relation of master and servant did not exist at the time.
In this connection we quote from the opinion of Judge Dailey, in Pennsylvania Co. v. McCaffrey, Admx., 139 Ind. 430, as follows :
‘ ‘ The law of nature is inexorable in its demands. The cravings of hunger must be appeased. The laws of humanity declare that every man, fit to be a member of a train crew, must have three meals, some rest, and eight
It cannot be said we think, that an employe is not in the line of- his duty when under such circumstances he remains on the premises of the master where he is engaged in his work during the brief interval allowed the employe by the employer for the purpose of enabling him to eat his dinner. Parkinson Sugar Co. v. Riley, 31 Pac. Rep. 1090; Evansville, etc., R. R. Co. v. Maddux, 134 Ind. 571. (See Bennett v. Railroad Co., 102 U. S. 577; McKone v. Michigan Cent. R. R. Co., 51 Mich. G01, 17 N. W. 74; Jeffersonville, etc., R. R. Co. v. Riley, Admx., 39 Ind. 568; Cleveland, etc., R. W. Co. v. Adair, 12 Ind App. 569; and authorities there cited; Pennsylvania Co. v. McCaffrey, Admx., supra Indiana, etc., R. W. Co. v. Barnhart, 115, Ind. 399 (16 N. E. 121). In the last case cited Judge Niblack says: ‘ ‘ Where a person has a license to go upon the grounds or inclosure of another, he takes the premises as he finds them, and accepts whatever perils he incurs in the
In our opinion the general rule applicable in such case is that it is the duty of the master to 'keep in a reasonably safe condition, having in view the nature and character of the business, all the machinery and appliances used in and about the premises where the employes, in the pei’formance of their services and matters incident thereto, would naturally and ordinarily be likely to go. An employe eating his dinner on the premises of the master where he is engaged in his work, under the circumstances of this case, is an act incident to his service. In the Maddox case, supra, the supreme court of this State recently held that the servant was not out of- the line of his duty because he remained on the premises of the master during the noon hour. In this
As we have before observed, the act of the employes in eating their dinner on the premises of the master, where they are engaged at work, under such circumstances as are shown to have existed in this case, is an incident to the service. The relation of master and servant and the duties incident to such relation continue during such interval. Where, under such circumstances, the employe eats his dinner at the place where he is engaged in his work, it is not necessary to show that he
Noblesville, etc., Co. v. Loehr, 124 Ind. Id, 83; Louisville, etc., R. W. Co. v. Costello, 9 Ind. App. 462, 467.
Judgment reversed .with instructions to sustain appellant’s motion for a new trial.
Concurrence Opinion
Concueeing Opinion.
The learned counsel for appellant earnestly insist that the complaint in this case proceeds upon the theory that the decedent, Manifee, was in the pump house at the time of receiving the injuries which resulted in his death, by the invitation of appellant, and that the motion to make the complaint more specific, by setting out in detail what constituted the invitation relied on, should have been sustained.
As to whether or not the decedent was at the time he was injured in the pump house by the invitation of appellant is, I think, an inference of law to be drawn by the court from stated facts, and not an inference of fact to be drawn by a jury from the evidence. It is the law that determines what amounts to an invitation; hence, to aver that the decedent was in the pump house by the
Without further elaboration upon this question, it is sufficient, as I view the allegations of the complaint, to-say that it proceeds upon the theory that the decedent, at the time he was in the pump house and was injured, was, as appellee alleges, ‘ ‘ engaged in the repair of the-roadbed and tracks of said defendant (appellant) and. in the line and discharge of his duty.” If the pump-house wasuthe place where his contract of employment required him to perform his duties, then appellant was bound to see that it was reasonably safe for that purpose. The rules of pleading, however, require that one suing to recover for an injury received must allege such facts as show a duty owing from the wrong-doer to the wronged. If the relation of master and servant existed between them it arose by reason of a contract having been entered into; for the relation of master and servant can arise only out of a contract, express or implied, between the master on the one hand and the servant on the other. “The relation of master and servant is one of contract” (Cooley Torts 42), and that contract determines the duty owing. A duty must be shown, for to merely allege that the relationship of master and servant exists does not show either what the servant has contracted to do for the master, or what duty the master owes to the servant. The master is not bound to do anything except that which he contracts to do for the protection of his servant, and unless the master has imposed upon himself or assumed special duties for the benefit of the servant, by the contract of employment, the law says his duty is fulfilled when he has furnished the
It must he conceded that if he was rightfully in the pump house it was because under his contract of employment the appellant agreed to, and did, provide that as a place where he should go to perform the duties which he undertook to perform. Upon no other hypothesis could he have been there rightfully?
A part of the duties which he was required to perform under his contract of employment “was to unload coal for the pump house, and to unload sand to he dried in the pump house.” None of his duties, so far as the verdict shows, required him to go into the pump house at all. If he went there it was not because his duties required him to do so.
It also appears that at noontime each day for thirty minutes the employment ceased and the decedent used the interval to eat his dinner; but did the appellant contract to furnish him a place in which to eat his dinner where he would he sheltered from the storm and where he could make himself comfortable while eating ? If it did, and the pump house was the place which it provided, then it owed the deceased the duty of seeing that the place so provided was reasonably safe for the purpose intended.
I am unable to clearly understand what my colleague who wrote the main opinion means when he says: ‘‘ When, as in this case, so brief an interval is allowed the employe in which to eat his dinner that he cannot
Is the language quoted intended as implying that during the thirty minutes allowed at midday the decedent was performing his duty to appellant which he agreed to perform under his contract of employment? If that is the meaning to be attached to the language used I must at once dissent from the proposition, for it is evident that when the noon hour arrived the decedent’s duty to appellant ceased and appellant’s duty to decedent, except the duty to permit him to depart in safety, ended.
Is it meant to imply that because the time allowed was too short to permit the decedent to go to his home, several miles distant, eat his dinner and return in time to begin work- at the usual hour designated for that purpose, therefore his employment continued whether he was in the discharge of his duties or not ?
If the duty of a master to his servant is not to depend upon the contract of employment entered into between them, but upon what a jury shall determine they should have contracted for, then it is right to say that because the jury find that the deceased could not go home to eat his dinner in the limited time allowed him, “his act in eating his dinner on the premises is an incident to the service. ” The law does not infer that by the contract of employment the master agrees to allow the servant time to eat his dinner. If it did it must also infer that the master must give the servant time enough to go to his home for that purpose and return to his work. Does the law assume to say that pai’ties shall enter into such contracts only as will admit of the eating of a meal at midday by the servant ? I take it thafc parties may contract that the servant shall work from
Of course if the contract of the parties does not control and we are to hold that it is the province of the jury to make such a contract as they may conclude the parties should have made, then it is proper for them to decide as a question of fact that because the interval of thirty minutes was too short to permit him to go to his home, eat his dinner and return in time to resume his work at the regular hour, his act in eating his dinner on the premises-was an incident to the service. If this is within the province of the jury then it is also their right to determine whether or not it was the duty of appellant to furnish the decedent with a comfortable place in which to eat and if need be a place to sleep. Incidents to service are such only as are embraced within the contract of employment and if not expressly defined therein are such as the law implies and not what a jury
“It is essential to the successful maintenance of an
There can be no case of the negligent injury of one person by another in the absence of a legal duty due from the person inflicting the injury to the person on whom it is inflicted.
“The first requisite in establishing negligence is to show the existence of the duty which it is supposed has not been performed.” Cooley Torts, section 659.
The relation of master and servant being contractual, the liability of the master to the servant is co-extensive with the contract of employment, and does not extend beyond it.
In Wright v. Rawson, 52 Iowa 329, which was an action by the servant against the master to recover damages for personal injuries received after leaving his usual place of work, and while visiting the other workmen, which was customary, the court says:
“In order to establish liability of defendant, it must be made to appear that the intestate was in the defendant’s employment and in the proper discharge of duty, and that he did not voluntarily seek a place of danger. It cannot be claimed that the defendant would be hable if the intestate had been a visitor to the mines, or had left his proper place and sought the dangerous room without thereby serving defendant or discharging any duty of his employment. When the accident happened it clearly appears that the intestate was not engaged in mining, which was his employment; that his proper place was not in the room where he was injured, but, on the contrary, he was a visitor there for his own pleasure or amusement. The intestate, not being engaged in his employment, was in the same position as a*506 visitor to the mine. An. employe having voluntarily put himself in danger, he cannot recover. Doggett v. III. Cent. R. R. Co., 34 Iowa 284. The custom of miners to visit their fellow-workmen and the acquiescence of the defendant in such custom cannot be regarded as an invitation for the workmen to leave their proper places and frequent dangerous parts of the mine at the risk of defendant.”
The relation of master and servant exists only when the person sought to be charged as master has the right of control over the person whom it is sought to show was a servant at the time when the injury happened. “He must, at the time, have had the right to direct the action of the servant, and to accept or reject its, rendition.” Woods, Master and Servant, section 306.
If the relation of master and servant did not exist at the time the decedent went into the pump house and was injured, and in this case it cannot well be contended that such relation did exist, then he was a mere licensee and went there at his own risk, enjoying the license subject to its concomitant perils. The appellant was not bound to keep its pump house in a safe and suitable condition for those who might go in there solely for their own convenience or pleasure. The law imposes no such duty upon it. I deem it unnecessary to cite authorities to sustain this proposition, for it is so well settled that no court has attempted to controvert it.
With these observations I concur in the result reached in the opinion of Judge Davis, and would add that under the facts found by the jury the appellee would not be entitled to recover upon any theory.