7 Ind. 436 | Ind. | 1856
The complaint charges that the appellees, •who were the defendants, were engaged in ballasting their road with sand and gravel, and for that purpose had in use a train of cars called “the gravel train;” that a number of laborers, the plaintiff being one of them, were employed in excavating gravel from certain banks, loading the same in said cars, and afterwards unloading and distributing it upon the defendant’s road; that many of said laborers, of whom the plaintiff was one, boarded and lodged in the town of Orawfordsville, distant two miles from the gravel banks, who, by agreement with the defendants, were regularly conveyed mornings, noons and nights, in their cars, called “the gravel train,” to and from the banks to said town. It is averred that the plaintiff, on the 2d of July, 1853, was a laborer in such employment, and on the afternoon of that day, at the defendants’ request, he became and was a passenger on one of the gravel cars, to be safely and securely carried and conveyed thereby, from the defendants’ depot in Orawfordsville to one of the gravel banks, to commence his labor; that the defendants received him as such passenger, and it then and there became their duty to use due care that he should be safely and securely carried and conveyed, &c.; yet that not regarding their duty in that behalf, they did not nor would use such care in causing the plaintiff to be conveyed as such passenger as aforesaid; and that by the gross negligence and unskilful conduct of the defendants, by their engineer employed to manage, and then managing and running the locomotive drawing the car carrying the plaintiff, the said locomotive ran into, and came in collision with, a train of passenger cars, likewise belonging to the defendants; by means whereof one of the plaintiff’s legs was broken, and he was otherwise injured, &c.
Demurrer to the complaint sustained, and judgment for the defendants.
Upon the inquiry presented by the record, the authorities are not uniform. It has been decided, that where several persons are employed in the same general service, and one
As a general rule a person in the management of his business, whether he does it himself or acts through agents, must so conduct that business as not to produce injury to others. We perceive no valid reason why this rule should not apply to the present case. The engineer was the defendant’s agent, and it is an admitted fact that the injury was alone produced by the gross negligence and unskilful conduct of that agent. ■ True, there is authority for the position that “when a party contracts to perform services, he takes into account the dangers and perils incident to the employment;” but this can only be intended to mean such “dangers and perils” as necessarily attend the business when conducted with ordinary care and prudence. He can not be presumed to have contracted in reference to injuries inflicted on him by negligence. The nature of the employment required the plaintiff to ride on the cars, and it seems to follow that the defendants were in duty bound to furnish a careful and skilful engineer to manage the train. In this it is conceded they have failed, and the result is a serious injury to the plaintiff, who has been guilty of no wrong. He is evidently entitled to recover, unless it be assumed that the defendants were not bound to make provision for his safe and secure conveyance ; and such an assumption, in view of the facts of this case, would, in our opinion, conflict with the plainest principles of justice.
There is really no difference, in principle, between this and the Gittenwater case, and we are inclined to adhere to that decision. The demurrer should have been overruled.
The judgment is reversed with costs. Cause remanded, &c.