35 Ind. App. 626 | Ind. Ct. App. | 1905
This action was brought by plaintiff, appellee, against defendant, appellant, to recover damages for the death of the plaintiff’s intestate on account of thei alleged negligence of the defendant in maintaining a bridge claimed to have been too narrow. The plaintiff’s intestate was a freight brakeman in the service of the defendant, and the action is based on the alleged common-law liability of the master to his servant. The case went to the jury upon the issue formed by the seventh paragraph of complaint (the other paragraphs having been withdrawn), and answer thereto of general denial. A verdict for $3,000 was returned in favor of plaintiff, and judgment rendered thereon.
The first point made by the defendant is that the court erred in overruling its demurrer for want of facts to the seventh paragraph of the complaint. The second, that there was no negligence of the defendant shown to have been the proximate cause of decedent’s death. Notwithstanding the able argument made against it, we are of the opinion that the complaint is sufficient to withstand a demurrer.
In Illick v. Flint, etc., R. Co. (1888), 67 Mich. 632, 35 N. W. 708, it is shown that the standard width is fourteen feet, and the bridge in question was only thirteen feet and four inches wide, yet it was held that the company was not negligent in so maintaining it. In the opinion the negligence of the plaintiff’s intestate is held by Sherwood -and Champlain, JJ., to preclude a recovery, Morse, J., reserving his opinion; but all concur in holding that the negligence of the defendant was not shown by the evidence.
In Sheeler’s Administrator v. Chesapeake, etc., R. Co. (1885), 81 Va. 188, 59 Am. Rep. 654, the sides of the bridge were only thirteen and one-half inches from passing engines, but the court held that there was no negligence in this respect.
In Kenny v. Meddaugh (1902), 118 Fed. 209, 55 C. C.
In McKee v. Chicago, etc., R. Co. (1891), 83 Iowa 616, 50 N. W. 209, 13 L. R. A. 817, a wing fence was three feet and ten inches from the rail, making it about two feet from the side of the car, and it was held that the company was not negligent.
In New York, etc., R. Co. v. Ostman (1896), 146 Ind. 452, a cattle chute was only thirteen inches from the cab window, and it is intimated that the company was not negligent.
In Wolf v. East Tenn., etc., R. Co. (1891), 88 Ga. 210, 14 S. E. 199, a space between the mail crane and the car was shown to be from eighteen to twenty-two inches, yet the court held that it did not appear that this would be unreasonably dangerous to employes when properly performing their duties.
In Sisco v. Lehigh, etc., R. Co. (1895), 145 N. Y. 296, 39 N. E. 958, the mail crane by which the trainman was struck was only twelve inches from the passing train, yet the court held that, the company was not negligent.
In Bellows v. Pennsylvania, etc., R. Co. (1893), 157 Pa. St. 51, 27 Atl. 685, an engineer was put on an engine six inches wider than those on which he had been running, and no warning or instructions were given him. The space between the side of the engine and the side of the bridge was only twenty inches, yet it was held that there was no negligence on the part of the company, and that he could not recover for injuries received by the contact of his head with the iron work of the bridge while he was leaning out of the cab window watching his train, although he could have safely done so on the engines that he had before used.
In Illick v. Flint, etc., R. Co., supra, the court say: “A railroad company can not be required to condemn and remove a bridge which is without fault in its plan ox defect
In Sheeler’s Administrator v. Chesapeake, etc., R. Co., supra, the court say: “The bridge was without fault as to plan and mode of construction; was amply sufficient' for, and had for many years answered all the purposes for which it was constructed. In such case this court can not undertake, in the absence of evidence, to say that the bridge was too narrow or was in any respect defective or unsuited to a well-constructed railway, or dangerous to either passengers or employes in the exercise of ordinary care and caution. To hold a railway company liable, under such circumstances, on the ground of defective construction, would be to go far beyond the limits of judicial authority, and impose liability not imposed by law. There can be no presumption of negligence in a case like this.”
It is said in Kenny v. Meddaugh, supra: “There was, however, no failure upon tire part of the defendants to use due care to provide the decedent a reasonably safe place to work, in this particular. Notwithstanding the proximity of the mail crane to the track, and the liability of a negligent fireman coming in contact with it when in position, it was reasonably safe. _ * * # In addition to this, all
In New York, etc., R. Co. v. Ostman, supra, the court say: “It would seem that the correct standard by which the negligence of the railroad company ought to be measured,’when the action is for an injury or death to one of its trainmen, arising out of its alleged negligence in erecting or maintaining a chute in too close proximity to1 its tracks is, that it must be, when so erected or maintained, dangerous or unsafe to persons operating its trains when they are exercising, under the particular circumstances, ordinary care.” If a bridge is wide enough to clear trains and let them pass in safety the purpose of their construction would seem to be accomplished. It is not to be anticipated that employes will be at the sides of the trains, or leaning far out from them while passing through bridges.
In the case last above named the case of Gould v. Chicago, etc., R. Co. (1885), 66 Iowa 590, 24 N. W. 227, is cited, and the following quotation made from the opinion: “ ‘It is not true that a railroad company is to be regarded as negligent in erecting or maintaining contrivances or things for use in the operation of their roads, for the reason that they are “dangerous to the persons operating trains.” Indeed, the whole business of operating trains is “dangerous.” It is full of perils to those employed therein. Because there is danger, it does not follow that the companies are negligent as to the things from which the danger springs. The instruction should have expressed the thought that if the crane was dangerous to persons operating trains in the exercise of ordinary care the defendant was negligent in constructing it,’ ”
In McKee v. Chicago, etc., R. Co., supra, a brakeman, in order to ascertain what was wrong with the running-gear of a freight-car, descended the ladder at the side, and, while swinging out to look under, came in contact with the wing of a fence. The court held that as the accident happened at a place where the employe could not be reasonably expected to be, there was not negligence, saying: “So far as the record shows the accident in question was improbable, and it was due to causes of such rare occurrence that
In Bryce v. Chicago, etc., R. Co. (1897), 103 Iowa 665, 72 N. W. 780, it is announced that the same rule controlled in Koontz v. Chicago, etc., R. Co. (1884), 65 Iowa 224, 21 N. W. 577, 54 Am. Rep. 5, and Davis v. Columbia, etc., R. Co. (1883), 21 S. C. 93.
It is not to be anticipated that an intelligent and ordinarily prudent man will unnecessarily expose himself to imminent or apparent danger. Against such possible conduct upon the part of the employe it is not required to provide. There is nothing in the evidence to indicate that defendant, in the construction and maintenance of the bridge, had not provided its employes a reasonably safe place for the discharge of their ordinary duties. There is an absence of testimony directed to the negligence of the company as to the decedent’s leaning out beyond the locomotive. The bridge was reasonably safe for the conduct of the business of the road. Such condition does not constitute negligence.
It is contended by counsel for plaintiff that, considering the evidence and the inferences that might legitimately be drawn therefrom by the jury, the evidence is amply sufficient to sustain the charge of negligence against defendant. To sustain this claim counsel cite Central Trust Co. v. East Tenn., etc., R. Co. (1895), 73 Fed. 661; Whipple v. New York, etc., R. Co. (1896), 19 R. I. 587, 35 Atl. 305, 61
In Whipple v. New York, etc., R. Co., supra, a telegraph pole was erected by a railroad company so near its track, and with snch a slant towards the track, as to render it dangerous to the company’s employes in the performance of their ordinary duties. It was held to be a defective structure, and the location and maintenance of the pole in such a position was held to be negligence on the part of the company.
In Sweet v. Michigan Cent. R. Co., supra, it was held that the constructing and maintaining of a side-track so near to' a building in the yards of a railroad company, and under its control, as to endanger the lives of its employes while switching cars on said track, is a violation of the duty of a company to provide a safe place for its employes to work in.
In Wright v. Chicago, etc., R. Co., supra, a railroad brakeman sued his employer for injuries sustained by him by being struck by a switch target while he was attempting to get on the cab of an engine. The complaint alleged that the cause of the injury was the negligence of the defendant in placing the switch target dangerously near the track. It was held that, as against a general verdict for the plaintiff, it was not to be presumed that the defendant was not guilty as charged, where the answers to interrogatories by the jury did not expressly so find.
In Southern Kan. R. Co. v. Michaels, supra, it was held that the placing and maintenance of a switch-stand on the
In Bryce v. Chicago, etc., R. Co., supra, the railroad track curved somewhat on a bridge, so that at one corner the ends of bolts in a truss at the side of the bridge would be only fifteen inches from a car. It was the duty of the brakemen on freight-trains to loosen hand brakes while near and passing over the bridge, and plaintiff, while going down a ladder on a. car, in the discharge of such duty, was struck by said bolts. It was held under the facts that he might recover. In the course of the opinion it was stated: “Nor can tire railroad company be said to be negligent in permitting obstructions between stations which do not interfere in any way with the ordinary and useful operations of its trains.” Also, “It wak urged that the bridge was of'standard width, and such as is commonly used by all railroads. No evidence in the record tends to sustain this claim.” Again it is said: “No accident has occurred at this bridge during the nine years of its existence. There was no evidence in support of this contention and none was admissibla” Hudson v. Chicago, etc., R. Co. (1882), 59 Iowa 581, 13 N. W. 735, 44 Am. Rep. 692.
In Baltimore, etc., R. Co. v. Roberts, supra, an action by a freight brakeman for personal injuries caused by the alleged negligence of the defendant in maintaining its tracks in too close proximity to each other, and in leaving a car loaded with lumber standing on one of its tracks, which struck plaintiff as he passed on a car in the line of his duty, the negligence of the defendant was properly submitted 'to the jury.
In Illinois Cent. R. Co. v. Welch, supra, plaintiff, while in the service of the company as a brakeman, sustained injuries; the evidence showing that the injury complained of
In Chicago, etc., R. Co. v. Stevens, supra, it is held that knoweldge of the danger from the close proximity of the coal chute to the tracks is not necessarily, as a matter of law, chargeable to an employe from the mere fact that he had frequently passed the chute, that his train had stopped there twice or more for coal, and that there was no rule of the company requiring employes to descend ladders of the freight-ears on the opposite side from such structures.
In Central Trust Co. v. East Tenn., etc., R. Co., supra, it was found from the evidence that O., a fireman on a locomotive, while in the discharge of the duty assigned him by the engineer, and in the position which he could naturally and properly assume for the purpose of such duty, was knocked from the engine by a station-limit, board placed near the track. Held, that it followed from these circumstances that the board was too near the track, and was a dangerous structure, the maintenance of which was negligence. To quote from the report of the special master: “The evidence in the case is somewhat voluminous "and contradictory. After a careful consideration of the same, I am of the opinion that the following conclusions are reasonably dedueible therefrom: The station-limit board in question, a few days after the accident, was taken up by the employes of the defendant, and removed three feet further from the track than where it had originally been placed. From an actual measurement, it was shown that the post was located, at the time of the accident, six and one-half feet from the
In the case at bar the bridge, as shown by the evidence, was of standard width, and the sides, the usual distance from the track.
In Potter v. Detroit, etc., R. Co., supra, it was not only not shown that the structure was a usual one, and the ordinary distance from the track, but that there was no- other like it or so close to the track along the road. The court admitted that, if there had been, this would have been sufficient notice of the obstruction in question.
In Southern Kan. R. Co. v. Michaels, supra, the structure was nine inches from the side of passing cars when the arrow on top of it was turned with the point towards the track, and it was so that the arrow so turned could not be readily observed. The court stated that “it does not appear that there was any other dangerously near the track.”
We have aimed to give the substance of the foregoing decisions upon the subject of culpable negligence. The facts are distinguishable from those in the case at bar, which exhibit a necessary structure, properly located, straight, without peculiar or unusual mechanical detail, of standard width, and safe for the passage through and over of defendant’s trains.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.