51 Ind. App. 43 | Ind. Ct. App. | 1911
— Action by appellee as administratrix of the estate of Leo Prendergast against appellant, as receiver of the Indianapolis and Cincinnati Traction Company, Philip Wilk and William Redman, for damages for the negligent killing of Leo Prendergast, by reason of his receiving an electric shock while working in the ear barn of said company at Shelbyville. The action was first brought in the Rush Circuit Court and the venue was changed to the Shelby Circuit Court. Issues were formed by a complaint in one paragraph to which a demurrer was overruled, and an answer in general denial filed. The jury returned a verdict in favor of appellee against appellant Henry, as receiver, for $1,500, and in favor of defendants Wilk and Redman. Over a motion for a new trial, judgment was rendered on the verdict.
The substantial averments of the complaint are that on December 8, 1908, Catherine Prendergast was appointed administratrix of the estate of Leo Prendergast; that the Indianapolis and Cincinnati Traction Company is a corporation owning an electric railroad running from Indianapolis to Rushville, Indiana, operated by electricity generated at its power-house at Rushville; that previous to July 1, 1905, the Indianapolis and Southeastern Traction Company owned and operated an electric railroad from Indianapolis to Shelbyville, Indiana that at Shelbyville said company owned a car barn, connected by tracks with its railroad, and into which it ran its cars for cleaning and repairing; that between the rails of said tracks was constructed a pit, five feet deep, four feet wide and thirty feet long, into which pit workmen entered for the purpose of repairing and cleaning the cars when such cars were run on the tracks above said pit; that on July 5, 1905, said Indianapolis and Cincinnati Traction Company leased said railroad from the Indianapolis and Southeastern Traction Company, together with said car barn and appliances, for 999 years, with full power to make any repairs or alterations it might see fit to make, and from that day said Indianapolis and Cincinnati Traction Company operated both of said railroads by electricity generated at its power-house at Rushville; that in July, 1906, defendant Charles L. Henry was appointed receiver of said Indianapolis and Cincinnati Traction Company by the Superior Court of Marion County, Indiana, and was ordered to operate both said Rushville and Shelbyville lines of railroad, and to keep said cars running thereon; that on November 1, 1906, said Henry, as receiver, decided to alter and
Plaintiff further says that before placing decedent' in said pit to work, it was the duty of said Wilk and Redman, and said Henry, as receiver, to inspect said wires, and see that they were properly insulated, but that each of them failed to do so, and as a result thereof, when said decedent com
Appellant claims that the complaint is insufficient, because it does not allege that the contract for the work done by Wilk and Redman was authorized by the court appointing the receiver, nor that the receiver had authority to alter and repair the pit in the car barn where deceased was killed, nor that the receiver had authority from the court to authorize said Wilk and Redman to employ laborers to work in said place.
The receiver had the authority, under such general order made in said receivership to contract for the work done by Wilk and Redman, to alter and repair the pit in the car barn where decedent was killed, and to authorize said Wilk and Redman to employ laborers to work in said place. Vanderbilt v. Central R. Co. (1887), 43 N. J. Eq. 669, 12 Atl. 188; Palys v. Jewett (1880), 32 N. J. Eq. 302; Little v. Dusenberry (1884), 46 N. J. L. 614, 50 Am. Rep. 445; Cowdrey v. Galveston R. Co. (1870), 1 Woods (U. S.) 331, Fed. Cas. No. 3,293; Taylor v. Canaday (1901), 155 Ind. 671, 57 N. E. 524, 59 N. E. 20.
A statement of the law which is highly applicable to the present ease is found in Vanderbilt v. Central R. Co. supra, where the court, by Magie, J., said: “Doubtless the chancellor has power to retain in his hands the administration of such a trust, and to personally direct and order each contract into which the receiver should enter. But it would obvi
It is averred that decedent was a laborer put to work to deepen the pit in the ear barns; that the pit was dimly lighted; that over the top thereof boards had been placed; that the light wire was at the extreme top of the pit; that decedent could not stand erect, but was compelled to stoop
(29.) “If you find that plaintiff’s decedent and one or more of his sisters in whose behalf this action was brought lived together as members of one family, and said decedent and said sisters or sister rendered services to one another of value, without any contract or stipulation for wages on either side; and if you further find that said decedent never furnished any money to any one of his said sisters, such facts alone would not preclude a recovery by plaintiff. Pecuniary injury may be caused by loss of services, on which the parties themselves never fixed any stipulated value, and for services rendered where there was no legal obligation to render them.”
Thongh care proportionate to the danger must be exercised, and though the use of electricity at a high voltage is accompanied with a high and lurking degree of danger, and requires a high degree of care, yet, in the light of the settled Indiana rule, we must conclude that instructions eleven and fifteen were harmful to appellant, and that the jury was misled by them, for which reason the case is reversed.
Other errors have been assigned, which may not occur at a new trial. The judgment is reversed, and the case remanded for retrial and for further proceedings not inconsistent with this opinion.
Note. — Reported in 94 N. E. 1015. See, also, under (1) 33 Cyc. 630; (3) 26 Cyc. 1397; (4) 31 Cyc. 83; (7) 13 Cyc. 385; (8) 26 Cyc. 1102; (9) 3 Cyc. 383. As to tlie liability of receivers of operating railroad's, see 120 Am. St. 280. As to the duty of employers in a service involving tbe use of electric wires, see 100. Am. St. 537.