172 Ind. 525 | Ind. | 1909
Appellee’s decedent, a brakeman on a freight-train of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, and hereinafter designated as the Big Pour, was killed by falling between cars while the train was being operated over a portion of the road of the Indianapolis Union Railway Company, hereinafter designated as the Belt, road, by the alleged negligence of both of said appellants.
The material facts set out in the first paragraph of the complaint are as follows: The Big Pour in operating one of its lines from Brightwood to the city of St. Louis, Missouri, uses a part of the' tracks and equipment of the Belt road, and in running a Big Pour freight-train over the Belt road the employes in charge of the Belt road, and those in charge of said train, in handling and in directing the same, were in the common service of both defendants. The plaintiff’s de
“If necessary to change any route for which the signals have been cleared for an approaching train, or en*530 gine, switches must not be changed or signals cleared for any conflicting route until the train or engine for which the signals were first cleared has stopped.”
Upon the display of said stop signal, engineer Cain was in the act of stopping the train, and the decedent then believed, and had a right to believe, that the train was about to be stopped. It was the duty of the signalman and the engineer to stop the train, in compliance with said rule; but the complaint alleges that, “disregarding their said duties, • they did not stop said train, nor attempt to do so, but negligently, and in violation of said rule, caused the same suddenly to be started with great force, without signal or warning to plaintiff’s decedent, who had no knowledge, or means of knowing, that same would be done. And said signalman, knowing that said train should be stopped, as herein averred, and having given the signal to stop, and in violation of said rule and without exercising due care, negligently, and as said train was nearing said signal, manipulated the same and changed and cleared the signal so as to signal that said train might go forward, and negligently and in violation of said rule manipulated and changed said switch tracks so as to guide said train into said side-track to the north and parallel with the track upon which said train was running, as aforesaid. And said engineer in .charge of said locomotive engine, having said train orders, and full knowledge of same, and knowledge of said rules governing him in the management of said train, and well knowing that he should not run upon said switch, nor change the route over which his said train orders directed him, until he had stopped said train, and was fully informed of a change in his orders, and the reasons therefor, negligently, on receiving said signal of the signalman, started his engine anew with great force, without bringing same to a stop, or attempting to do so, and ran said train on said side-track.”
It is further averred that, when the train was started anew for the purpose of running into said side-track, the
The defendants separately demurred to each paragraph of the complaint, which being overruled, the issues were joined by the general denial.
There was a verdict and judgment for the plaintiff against both defendants.
The first question presented is the sufficiency of the first paragraph of the complaint.'
The theory of the first paragraph is that the decedent lost his life by the negligent handling of the train on which he was employed, by the engineer’s failing to bring the train to a stop before reaching a stop signal, and by the negligence of the Belt road signalman, in charge of the semaphore, in changing the stop signal to a proceed signal before the train had stopped, and by the further negligence of said engineer in suddenly and without any warning to the deceased that he was about to do so, increasing the speed of the train by an unexpected and violent jerk, which threw the decedent off the train and between the moving cars, all in violation of clause four of section' one of the employers ’ liability act (Acts 1893, p. 294, §8017 Burns 1908), and of rule seventy-nine of both defendants.
There are no grounds for the contention of counsel for the Belt road, that the complaint is predicated on the negli
The sixth request of the Belt road was rightly refused.
Under the first paragraph of the complaint the action against each of the defendants, and under the second paragraph against the Big Pour, rests upon the fourth clause of section one of the employers’ liability act (Acts 1893, p. 294, §8017 Burns 1908), and the negligence relied on, to wit, of a coemploye in charge of a signal on the one part, and in charge of a locomotive engine on the other, is of a character that the statute disqualifies the servant and requires the master to assume. Davis Coal Co. v. Polland (1902), 158 Ind. 607; Bessler v. Laughlin (1907), 168 Ind. 38; Island Coal Co. v. Swaggerty (1903), 159 Ind. 664.
Likewise, a corporation having issued and enforced such rules among its employes, if, while observing them, and relying upon their observance by others, an employe is injured by an inexcusable violation of such rules by. the corporation itself, it goes without saying that such conduct would constitute negligence.
The mutual duty of the parties, with respect to rules, is said to arise from the broad principle that their promulgation by the company, and the entering and remaining in the service after knowledge of their provisions, implies on both sides an agreement to obey them; and their infraction by either party is therefore attended with that liability which the law imposes from the doing of an act in an unnecessarily
The great weight of authority is to the effect that, when the evidence clearly shows that the injury complained of was caused by a needless violation of a valid and reasonable rule, promulgated for the protection of the class of employes to which the injured party belonged, under such circumstances as attended the accident, the court is warranted in pronouncing the act negligence as a matter of law. Somerset, etc., R. Co. v. Galbraith (1885), 109 Pa. St. 32, 39, 1 Atl. 371; Memphis, etc., R. Co. v. Graham (1891), 94 Ala. 545-552, 10 South. 283; Lake Erie, etc., R. Co. v. Craig (1897), 80 Fed. 488, 25 C. C. A. 585, 47 U. S. App. 647, 660; Sedgwick v. Illinois Cent. R. Co. (1888), 76 Iowa 340, 41 N. W. 35; Sutherland v. Troy, etc., R. Co. (1891), 125 N. Y. 737, 26 N. E. 609; Abend v. Terre Haute, etc., R. Co. (1884), 111 Ill. 202, 53 Am. Rep. 616; Louisville, etc., R. Co. v. Heck, supra; Buswell, Per. Inj. (2d ed.), §153; 1 Labatt, Master and Serv., §§365, 367.
In the last cited section the author says: “In New York and Texas, views have been expressed which are more or less at variance with the doctrine that culpability is a legal inference when the servant’s act is once proved to have constituted an infraction of a valid rule of which he had notice. It can scarcely be doubted, however, that, even if the numerous authorities on the other side are left out of account, these views are erroneous. The decisive consideration which is altogether ignored in the decisions cited is that every breach of a rule represents a breach of a contractual obligation which has either been expressly assumed by the servant, or is implied from the fact of his having accepted or continued in the given employment with notice of the existence of the rule so violated. * * ® The servant’s agreement is that, whatever may have been, apart from the rule, the standard of proper care under the circumstances, the rule itself is to
There are, however, a great many circumstances attending the violation of rules which modify the act and give it such character, with respect to negligence, as will make it a question for the jury. It has been held that among these circumstances and conditions are the following: If it is shown, that an observance of a rule is impossible or impracticable for want of some necessary instrumentality or other good reason; that the employe had no knowledge of the rule, either actual or constructive, or had no knowledge, either actual or imputed, that the conditions which invoked the exercise of the rule existed at the time of the accident; that a rale is ambiguous or uncertain in its application, and a bona fide, though erroneous, effort was made to comply with it; that there was a failure to recognize the pertinency of the rule to present conditions, such failure being consistent with a reasonable construction of the rule; that a violation is induced by some urgent emergency; that the compliance with said rule is in conflict with some other paramount duty—it should be, in all such cases, left to the jury, under proper instructions, to characterize the violation as constituting negligence or due care.
To illustrate: Where the excuse set up is that there was no time or opportunity to inspect a foreign car, a failure to inspect, being in violation of a rale, should be submitted to the jury. Chicago, etc., R. Co. v. Fry (1892), 131 Ind. 319, 330. Whether it was necessary, in violation of a rule, to go between moving cars, in order successfully to couple them, is also for the jury. Eastman v. Lake Shore, etc., R. Co. (1894), 101 Mich. 597, 60 N. W. 309.
In the case of Somerset, etc., R. Co. v. Galbraith, supra, the rules of the company required a freight conductor to take his place about the middle of his train, in long, down-grade movements, better to direct the brakemen. In a down-grade movement the conductor left the position assigned him by the rules and went forward to the engine to caution the engineer to be on the lookout for certain obstructions that the conductor had been informed were liable to be on the track ahead. While at the engine, the same left the track, whereby the conductor was killed. In relation to which the court said: “He had, it is true, certain orders from the company under the general regulations, one of which was, that he should remain in the middle of the train, to command the crew, in regulating the speed on descending grades. He was held, of course, to the reasonable observance of all these rules, but he had a general duty and discretion to exercise in an emergency. His duty varied according to the circumstances. Unless some exigency calls him away he must remain at his post, whilst the train is on a descending grade, but he must necessarily be allowed some latitude in the exercise of judgment for the safety of his train.” Applying these principles to instruction eighteen, we find no objection to it. In effect, it admonished the jurors that if they found there existed a rule governing a train running west on the Belt road, when the track upon which the train was running should be found obstructed, and it became necessary to reroute said train; and if they further found such rule was violated—that is, that the re-routing signal, required by rule seventy-nine, applied to the decedent’s train, and was not properly given, under the circumstances, when it should have been given, and there was no excuse for the failure to give
The contention of counsel is that, the rule being a written instrument, it was the province of the court, and not of the jury, to interpret it, We readily concede the general rule to be as affirmed by counsel, but there are exceptions as well founded as the rule itself.
The exception applicable here is well stated by Woods, J., in Reissner v. Oxley (1881), 80 Ind. 580, in these words: “The right of parties to put an interpretation upon their own contracts, even to the extent of doing away, practically, with the ordinary and plain meaning of terms, cannot well be denied, so long as their interpretation does not result in a contract which for some reason is in itself unlawful. And the eases are numerous and consistent, which permit a resort to proof of the circumstances or situation of the parties, when their contract was made, and of their transactions under it, when its terms are of doubtful or ambiguous meaning, for the purpose of arriving at the true intention, and, when this is done, the question must be left to the decision of the jury substantially as was done in this instance.”
The answers to the interrogatories were not in conflict with the general verdict, under the oft-repeated rule in this State, and the court did not err in denying judgment thereon in favor of the defendants.
There are divers other questions, arising upon instructions requested and given, and the giving and refusing of testimony, which we think have been fully decided by what has already been said in this opinion.
No error appearing, the judgment is affirmed.