162 Ind. 85 | Ind. | 1904
Appellee brought this action against appellant and the Kirkpatrick Construction Company, a corporation, to recover for a personal injury alleged to have been caused by the negligence of' said corporations. The defendants jointly filed a demurrer to each paragraph of the amended complaint, and each defendant filed a separate demurrer to each paragraph of the complaint. These demurrers, which challenged each paragraph of the complaint for want of facts, were overruled by the court, to which ruling the defendants “jointly and separately excepted.” A trial of said cause resulted in a general verdict against appellee as to the Kirkpatrick Company and in favor of appellee against appellant. Appellant filed a motion for a new trial, which wras overruled, and judgment was rendered on the verdict in favor of appellee.
x\ppellee insists that appellant’s assignment of errors predicated upon the exception taken by appellant to the rulings on the demurrers to each paragraph of the complaint present's no question as to the sufficiency of the paragraphs thereof, citing City of South Bend v. Turner, 156 Ind. 418, 421, 54 L. R. A. 396, 83 Am. St. 200. It will be observed that in the case cited the exception was joint, while in this case the defendants “jointly and separately excepted.” It is clear, therefore, that the case cited is not in point here.
The first paragraph of the amended complaint proceeds upon a common law liability. Appellant was, on May 27, 1901, “a corporation owning and operating an interurban street railway extending from Irvington to Greenfield, in this State, and was a common carrier of passengers for hire. On said day appellee was an employe of appellant as a common laborer, and was engaged with divers others in constructing a spur from appellant’s track to Spring Lake, a distance of three-fourths of a mile. Appellant had in use on said day a car known as a work-car, which had been and was used in carrying its employes to divers points along said road where they were engaged and employed by appellant in building, maintaining, and repairing ’its said line of road. After said day’s work had been finished, at about 6:30 p. m., appellee, with divers other employes of appellant, entered said work-car on said spur for .the purpose of being carried to Greenfield, where he resided. SThile he jvas in said car, and the same was standing on
It is also alleged in said first paragraph that “the work in which appellee was engaged was common labor upon the tracks of appellant, and had no connection with, nor was the same in any manner incident to or a part of the work or employment of said motorman or servants in charge of the passenger-car; 'nor were the squad of laborers with whom said appellee was working as aforesaid, and who were with him in said work-car, in any manner connected or associated with the said servants of appellant in charge of said work-car or said passenger-car which collided with it; that appellee had no charge of said work-car or the operation thereof, but was simply a passenger thereon at the time of the accident.” Appellee says that this “paragraph of the complaint proceeds upon a common law liability,” and that the same is sufficient, because it is alleged that his injury was occasioned by the negligence of other servants of the company, whose duties were not common nor in the same department with those of the appellee, citing Fitzpatrick v. New Albany, etc., R. Co., 7 Ind. 436.
It was held in the ease cited and in Gillenwater v. Madison, etc., R. Co., 5 Ind. 339, 61 Am. Dec. 101, that a railroad company is liable to an employe for an injury occasioned by the negligence of other employes of the company whore the duties of the latter, in connection with
In Gormley v. Ohio, etc., R. Co., 72 Ind. 31, a laborer,
It is a general rule in this State that employes, while being transported to and from their work on the cars of trains of their employers, are fellow servants of those engaged in the same general undertaking, and if injured, while being so carried, by the negligence of a fellow servant, the employer is not liable therefor. Bailey, Masters’ Liability, 283, 360, 361, and cases cited; Ohio, etc., R. Co. v. Hammersley, 28 Ind. 371; Wilson v. Madison, etc., R. Co., supra, and cases cited; Capper v. Louisville, etc., R. Co., supra, and cases cited; Ohio, etc., R. Co. v. Tindall, 13 Ind. 366, 369, 74 Am. Dec. 259, and cases cited; Gormley v. Ohio, etc., R. Co., supra; Bowles v. Indiana R. Co., 27 Ind. App. 672, 675, and cases cited; Ewald v. Chicago City R. Co., 70 Wis. 420, 36 N. W. 12, 5 Am. St. 178; Gilman v. Eastern R. Corp., 10 Allen 233, 87 Am. Dec. 635; Gillshannon v. Stony Brook R. Corp., 10 Cush. 228; Ryan v. Cumberland Valley R. Co., 23 Pa. St. 384; Vick v. New York, etc., R. Co., 95 N. Y. 267, 47 Am. Rep. 36.
The allegation that the work appellee was engaged in doing had no connection with, nor was in any way connected with or incident to or a part of, the work or employment of the motorman or 'servants in charge of the passenger-car, and the allegation that he was simply a passenger on the work-car, and the allegation that appellant-owed him a duty, and was bound to carry him safely, are mere conclusions of the pleader, and are not admitted by the demurrer, and can not control the special facts alleged, which show that he was a fellow servant of those in charge of the passenger-car. Woollen, Trial Proc., §1037.
It is true that if an employe is injured by the negligence of a fellow servant who is incompetent, and this incompetency is the proximate cause of the injury, the employer is liable therefor if he knew, or could by the exercise of
The second paragraph of the amended complaint alleges that appellee’s injury was caused by the negligence of the employe in charge of the switch in opening the same so as to allow the passenger-car to enter thereon and collide with the work-car. Conceding, without deciding, that this paragraph sufficiently charges the incompetency of the person in charge of s'aid switch, and appellant’s knowledge thereof, it is not alleged that appellee did not know of such incompeteney before the injury. Eor want of allegations negativing such knowledge on the part of appellee the paragraph was clearly insufficient. It is alleged in said paragraph that appellee was injured “without any fault or negligence on his part,” but this does not take the place of averments showing that the risk of the incompetency of the person in charge of the switch was not knowingly assumed as an incident of his service. Louisville, etc., R.
The third paragraph of the amended complaint is founded upon the second subdivision of §7083 Burns 1901, ,§5206s Horner 1901, which provides “that every railroad -x- -x- -x-. gbaii be liable for damages for personal injuries suffered by any employe while in its service, the employe :so injured being in the exercise of due care and diligence, -x- -x- * gecond. ■ Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time ■of the injury was bound to conform, and did conform.” In ■order to make a good complaint under this subdivision, it is necessary to allege, among other things, that the injured ■employe was conforming to the order or direction of some person in the service of the corporation to whose order ■or direction he was bound to conform and did conform, .■and that while conforming to such order or direction he was injured by the negligence of the employe to whose ■order he was conforming. Thacker v. Chicago, etc., R. Co., 159 Ind. 82, 90-93, 59 L. R. A. 792; Louisville, etc., R. Co. v. Wagner, 153 Ind. 420; American Rolling Mill Co. v. Hullinger, 161 Ind. 673.
It is alleged in said paragraph that on the 27th of May, 1901, appellee was in the service of appellant as a common laborer, and was directed by appellant to enter one of its cars, about one mile west of Philadelphia, for the purpose of being carried by appellant to the city of Greenfield; that appellee was bound to conform to the order and direction aforesaid, and that while on said car appellant negligently and carelessly ran one of its other cars into and caused the same to collide with the car which appellee had entered, whereby he was injured, etc. This paragraph is clearly insufficient. It is not shown that the employe
In the fourth paragraph it is alleged that appellee, a laborer in the service of appellant, was directed to enter said work-car for the purpose of being carried to Greenfield, and was thence carried to a siding; that at the time and place “where said car was side-tracked the switch was placed by appellant in charge of one of its servants, who then and there negligently and carelessly operated said switch so that another car of appellant ran into the same and collided with great force and violence with the car on said switch in which appellee was then riding, whereby he was injured, etc.; * * * that said servant of appellant in charge of said switch as aforesaid was at the time and place acting in the place and performing the duties of said appellant, and that appellee was then and there obeying and conforming to the order of appellant at the time of such injury.” It is evident from what wo have already said that the allegations of said paragraph are not sufficient to avoid the effect of the common law rule that an employe can not recover for injuries caused by the negligence of a fellow servant. It is also clear from what was said in regard to the third paragraph that a cause of action is not stated under the second subdivision of §7083 Burns 1901 of the employers’ liability act of 1893.
Neither does the allegation concerning the negligence of the person in charge of the switch state a cause of action under the fourth subdivision of the employers’ liability act* •for no liability is created by said subdivision for injuries
The fifth paragraph of complaint is predicated upon common law liability, and proceeds upon the theory that the injury complained of was caused by the negligence of a motorman in the service of apjsellant, who was a reckless and incompetent motorman, and was known to be such by appellant long before the collision in which appellee was injured. It is not alleged in said paragraph that appellee had “no knowledge of the recklessness and incompetency of the motorman.” Such an allegation is essential to the sufficiency of a paragraph predicated upon the incompetency of a fellow servant. True, it is alleged that the passenger-car in charge of the motorman “collided with the car in which appellee was riding, whereby appellee, without any fault or negligence on his part, and without any knowledge of the careless and reckless conduct of said motorman in operating his said car, was thrown with great force and violence forward in said car,” and thereby injured. The allegation that appellee was “without any
It is alleged, as against appellant, in the sixth paragraph, that appellee was in the service of appellant constructing a spur-track from appellant’s main line to Spring Lake, “and was and had been carried by defendant [appellant] from his home in Greenfield to and from his place of employment; that for the carrying of said plaintiff and his co-laborers to and from the point aforesaid the defendant had furnished a work-ear propelled by electricity; that it was so old and so negligently constructed and equipped that it could not be operated on the defendant’s main line without great danger of collision with the other cars of the defendant running between stations, or delaying the same in making- their schedule time; that at the close of plaintiff’s day’s work and on said day he was ordered, directed, and invited • by the defendant, by and through its authorized 'agents and employes, to enter into and upon said work-car, to be carried from his place of employment to his said home in Greenfield aforesaid; that by reasoj}
It can not be held that said paragraph shows that appellant had failed to exercise ordinary care in establishing and promulgating its - rules, or in the mode of keeping knowledge of and directing its cars. There are no direct averments to that effect. Moreover, said allegations are mere conclusions of the pleader stated by way of recital. Facts, not conclusions, must be averred; and they must be pleaded directly and positively. It avails nothing as against a demurrer to aver conclusions or to plead facts by way of recital. Nysewander v. Lowman, 124 Ind. 584, 590; Weir v. State, ex rel., 161 Ind. 435, and cases cited;
Disregarding the conclusions, recitals, and allegations mentioned, said amended sixth paragraph charges that appellee’s injuries were caused by the negligence of those “in the control, management, and direction of” the work-car and the car which ran into it. The persons in charge of said ears, as we have already shown, Avere, regardless of the names or titles by which they were designated, felloAv servants of appellee, and if appellee was injured by their negligence, as alleged, appellant was not liable therefor.
It is a well-settled rule in this State that an employe who knows, or by the exercise of ordinary care could know, of any defects or imperfections in, the place, ways, machinery, appliances, tools, or other things about which
While it is sufficient to allege in the complaint a want of knowledge on the part of the injured employe, to sustain such allegation the evidence must show that the injured
As none of the paragraphs of complaint states a cause of action under the employers’ liability act of 1893 (§7083 Burns 1901), it is unnecessary to decide whether or not said act, or any part thereof, applies to street and interurban railroads. For a discussion of this question see Sams v. St. Louis, etc., R. Co., 174 Mo. 53, 73 S. W. 686, 61 L. R. A. 475; Savannah, etc., Railway v. Williams, 117 Ga. 414, 43 S. E. 751, 61 L. R. A. 249; Dresser, Employers’ Liability, §80, pp. 349, 350, and cases cited. Other questions are argued, but as they may not arise on another trial of the cause they are not considered.
Judgment reversed, with instructions to sustain appellant’s demurrer to each paragraph of the amended complaint.