144 Ind. 214 | Ind. | 1896
Lead Opinion
The appellee sued and recovered against the appellant for personal injuries alleged to have been sustained while being ejected from the' appellant’s freight train. The complaint disclosed no relation of passenger and carrier and alleged no right or authority in the appellee to go or remain upon the appellant’s freight train, but proceeded upon the theory that the appellee was a trespasser. While so upon the train, it was alleged, one George Harris, appellant’s rear brakeman on said train, ordered appellee from said train, while the same was running at a rate of speed rendering it dangerous for appellee to get off, and, when the appellee had hesitated and declined to get off, said brakeman pursued him with a bludgeon, cursed him and threatened to kill him; that, in fear of his life, and while excited, the appellee attempted to leave said moving train, when he slipped and fell to the ground and was run over by said train. The allegation of the complaint disclosing the theory that the brakeman, in what he did, was acting in the line of his employment was as follows: “That according to the rules and regulations in force at said time, the brakeman, George Harris, * * was constituted the servant and guardian of the said train * * and as such guardian of such train it was the duty of said George Harris to protect said train from danger during its trip, which it was then entered upon to Chicago, and from trespassers and from the presence of persons upon said train.”
The theory of the complaint and that upon which the cause was tried and is here sought to be main
Upon the trial the parties submitted to the jury certain interrogatories, which were answered and returned with a general verdict in favor of the appellee. The appellant moved for judgment in its favor, notwithstanding the general verdict, and the overruling of that motion presents one of the questions urged for reversal. Such of the interrogatories and answers as may possibly be relevant to the discussion are those of the appellee:
“First: Was Martin Peterson on top of a car of a train of defendant known as Third Number Forty-seven on October 25,1891? Ans. Yes.
“Second: Is it not true that a brakeman by the name of George Harris ran after Martin Peterson while on top of train Third Number Forty-seven, with a club or stick uplifted and threatened said Peterson, and caused him to be frightened and fall off said train, in which fall said Peterson received the injuries mentioned in the complaint? Ans. Yes.”
Those of the appellant:
. “1. Was not plaintiff injured by falling from and being run over by west bound freight train No. 47, Third Section, on defendant’s tracks in Elkhart west of Twelfth street? Ans. Yes.
“2. Was not A. C. Rossiter conductor in charge of train No. 47, 3d section,on the day of plaintiff’s injury? Ans. Yes.
“3. Is not Twelfth street about five hundred feet west of Tenth street in said city of Elkhart? Ans. Yes.
“4. Was not said train 47, third section, standing east of Tenth street just before and at the time it started to pull out of Elkhart? Ans. Yes.
“8. Was not plaintiff catching on to and riding on said train without the permission of the defendant? Ans. Yes.
“9. Was not plaintiff trespassing on the tracks and train of defendant on the occasion of his injury? Ans. Yes.
“17. Was not the speed of said train at the time plaintiff fell off from four to six miles per hour? Ans. Yes.
“18. Did rear-brakeman Harris drive plaintiff from said train, brandishing a club and using the language set out in the complaint? Ans. Yes.
“19. At and before the time of plaintiff’s injury, were not the following rules regarding brakemen in force, which had been promulgated by defendant:
“ ‘96. On entering the service of this company they each procure a copy of the general rules on the time table and of these rules, and make themselves acquainted with them. They must then present themselves for examination by the Superintendent, who is charged not to accept any person not vouched for as of good morals, sober and industrious. They will be required to sign an acknowledgment as specified in rule 35.
“ ‘97. They are under immediate orders of the conductor or yardmaster with whom they serve, and must give him every assistance in the performance of his duty. They are to ask and receive from him all instructions necessary to their duties.
“ ‘In general they are the servants and guardians of*218 tlie train; to do all the work required during its trip and to protect it from danger.
“ ‘98. They should observe at every stop the condition of the journals, wheels, brakes and other parts of the cars, or of their attachments, which are likely to become heated, or to get out of order; and they must report any heating or derangement at once to the conductor.
“ ‘99. They are expected to be orderly, polite and attentive to duty; to try to serve the company well and to deserve promotion. Conductors are instructed to replace men who fall short of these requirements by the employment of others who will fulfill them.
“ ‘100. They are expected to make themselves familiar with the duties of conductors as defined in the general rules of the time table and in this book.
“ ‘101. When employed on a passenger train, except when engaged in other duties, they must remain near the door, standing; unless the seat nearest the door is vacant, when they may sit down, but not otherwise. They must give constant attention to keep the coaches as comfortable, well ventilated and free from dust as circumstances will allow.
“ ‘102. They must provide themselves with warm clothing sufficient to endure the longest exposure in storms and in winter. When on duty they must always have fog signals—torpedoes—in their pockets ready for instant use.
“ ‘103. In applying the brakes they must take care not to slide the wheels, for that destroys the wheels, yet does not retard the train so much as to let the wheels turn slowly in the brakes. In approaching places at which a stop is to be made, they should apply the brakes in time to stop, and releasing them before starting; without any signal from the whistle.
“ ‘104. They are particularly charged to study and*219 to understand rule 20 of the general rules upon the time table; for when a train breaks in two they can always prevent damage if they proceed exactly as therein directed, while they will be almost certain to cause destruction if they vary from the directions given.’ Ans. Yes.
“20. At and before the time of plaintiff’s injury, was rear-brakeman Harris directed by any officer or agent of defendant to put plaintiff off the train upon which he was riding? If so, by what officer or agent? Ans. No.
“21. At and before time of plaintiff’s injury, was rear-brakeman Harris in any way directed or instructed by any officer or agent of defendant in regard to letting on, keeping off or ejecting persons from defendant’s freight trains other than by rules set out in interrogatory 19? Ans. No.”
The effect of the general verdict was to find that the brakemán was authorized by the company, or directed by some one in authority generally, to eject trespassers from the train. There is no question of the rule that the general verdict must stand until the answers to interrogatories are found to be in irreconcilable conflict with it. But counsel for the appellee insists that the answer which is urged to stand in conflict with the general verdict, that is to say, the answer to the nineteenth interrogatory consists óf a mere statement of evidence and does not find the ultimate fact which, it is claimed, should have been that the act complained of was or was not within the scope of the brakeman’s employment. The only rule of the company, found in the answer in question, which, by any possible construction, could be held to have given the brakeman express authority to eject trespassers was that numbered 97. It is that rule which is urged by the appellee as constituting express authority to
The duties of brakemen as to the carrying of torpedoes, the application of brakes, what should be done in case the train should break in two, as to learning the rules concerning conductors’ duties and the rules upon the time table, can have no bearing upon the question of the existence of express power to remove trespassers. Nor can the existence of other and undisclosed rules leave the question in doubt as to whether they contained express authority on the subject, for any such doubt is dispelled by the answers to the twentieth and twenty-first interrogatories. The nineteenth interrogatory and answer, in the light of what we have said, are, as if the jury had stated specially by their verdict: The brakeman, Harris, had only such directions and instructions to eject the plaintiff, or persons generally, as are contained in the following rule of the company as to its brakemen: “97. They are under the immediate orders of the conductor or yard master with whom they serve, and must give him every assistance in the performance of his duty. They are to ask and receive from him all instructions necessary as to their duties. In general, they are the servants and guardians of the train; to do all the work required during its trip and protect it from danger.” In our opinion such a finding would involve not simply an item of evidence, but the statement of a fact upon which the court could determine, as a question of law, whether authority had been
Of the control of the question involved in the inquiry as to the scope of an agency, Judge Elliott has said, in his work on the General Practice, section 426, that “Where the facts are undisputed or the authority is conferred by a writing, the scope of such authority is generally a question of law for the courts,” citing Mobile & O. R. R. Co. v. Thomas, 42 Ala. 672; Ludwig v. Gorsuch, 154 Pa. St. 413 (26 Atl. R. 434); 4 Mo. App. 576; Loudon Sav. Fund Soc. v. Hagerstown Savings Bank, 36 Pa. St. 498-502.
If, as appellees’ learned counsel insists, the finding had been that the brakeman had or had not authority to eject, such finding would have stated the limit of the issue, both as a question of fact and one of law, and would have been objectionable. Manning v. Gasharie, 27 Ind. 399. It would have deprived the court of all privilege of passing upon the fact and would have been as conclusive of inquiry as the gen
In Elliott Gen. Pr., section 931, it is said that “a finding as to the legal effect of a deed or of certain circumstances constituting notice, has been held to be a conclusion of law.” Miller v. Shackleford, 4 Dana (34 Ky.) 264; Bacon’s Abridg. Verdict E.; Hankey v. Downey, 3 Ind. App. 325.
There is, therefore, no objection to the form of the interrogatory or the answer thereto as being merely evidentiary.
Upon the question of the conflict between the gentral verdict and the answers to special interrogatories said to exist, there is little doubt of its importance and controlling influence upon the case. As we understand counsel for appellee, it is not insisted that it is essential to the appellee’s recovery that brakemen have implied authority to eject trespassers from the freight trains upon which they are employed, nor that the burden of showing that the act complained of was within the scope of the brakeman’s employment rested upon the appellant. However, we take the rule to be free from doubt that the burden rests upon the injured trespasser to show that the brakeman inflicting the injury possessed the authority to do the act which resulted in injury. Forber v. Mo. Pac. Ry. Co., 116 Mo. 81; Corcoran v. Concord & M. R. Co., 56
In the first of these cases the plaintiff was a trespasser on a passenger train and was kicked therefrom by the conductor or brakeman. The objection to liability was that the act was not within the scope of the employment of those “in charge of the train.” The court held, without attempting to discriminate as between the authority of a conductor and a brakeman, or as between the implied authority of servants upon a passenger train and a freight train, that the act of ejecting the trespasser was, if by a brakeman, within the implied authority of his employment. In the second of the cases cited by the appellee the plaintiff was a trespasser upon a freight train, and was injured while being ejected by a brakeman. The evidence of one of the brakemen on the train was that “I was to keep them off of my end of the train and he' was to keep them off of his.” Though unnecessary to place the case upon that ground, the court held that implied authority existed in a brakeman to eject trespassers. The Indiana case cited is placed distinctly upon the ground, not of an implied authority in a brakeman to eject, but upon the allegation of the complaint that those who had been put in charge and
To return to the question as to whether conflict existed between the general verdict and the special interrogatory and answer, numbered nineteen, it must be borne in mind that rule ninety-seven must be found to constitute authority to the brakeman to eject trespassers generally, or the general verdict affirming such authority cannot stand. In our opinion it does not constitute such authority. Its proper construction constitutes the brakeman a servant “to do all the
There is no hypothesis upon which the general verdict, finding express authority to eject, can be reconciled with the special finding that rule ninety-seven was the only express authority to eject. In this view of the question the circuit court should have sustained the appellant’s motion for judgment non obstante veredicto, and the judgment is reversed, with instructions to that court to sustain said motion.
Filed December 20, 1895.
Rehearing
On Petition for Rehearing.
The petition for a rehearing has been supported by a very earnest and elaborate brief by appellee’s counsel. Much has been said of this court’s misconception of the theory of the case as outlined by the complaint, and, since the proper view of
In further discussion of the theory of the case, counsel says, after quoting an extract from his. former brief: “Clearly and unmistakably indicating and showing that my contention was that this power
Again, he says: “Had I advanced the theory that there was express authority conferred by the printed rules and regulations to put the trespasser off the train, why would I have introduced in evidence rule 97? Is it contended that I was unable to read the plain English before me? Or have I the hardihood to write to this court that such authority was contained in that rule?” And again counsel says: “Appellee never has contended that express authority was given to Harris to eject the plaintiff from the train.” It will be seen, therefore, that not only does counsel assent to the doctrine of Wood: the non-liability upon implied authority, but renounces the claim of express authority and confirms all that we have said in the original opinion as to the construction of the rules and the finding of the jury that there was no express, general or particular authority to the brakeman to eject the appellee or other trespassers. Nothwithstanding these vehement protests against the theory of express authority, counsel, in his original brief, devoted nearly seven pages thereof to a discussion of the construction and effect of the rules set out in the interrogatories to give brakemen authority to eject trespassers. He dwelt particularly upon rule 97, and quoted the definitions, from Webster, of the word “guardian,” employed in said rule. In one instance, he said: “The language of that rule means just what
Another statement of that brief indicating the appellee’s theory of the case is as follows: “The allegations in the complaint found to be true by the general verdict, and which these interrogatories and rules are assumed to overthrow, are as follows: ‘That according to the rules and regulations—not rules—in force at said time, the brakeman, George Harris, brakeman as aforesaid, was constituted the servant and guardian of the train upon which said Martin Peterson climbed for the purpose aforesaid, and, as such guardian of such train, it was the duty of said George Harris to protect said train from danger during its trip which it was then entered upon to Chicago, and from trespassers and from the presence of persons upon said train.” Transcript, p. 3, 1. 20-27. And after describing the injury and manner of its infliction, proceeds:
Some of the misfortunes attending this new theory are that specific allegations control general state
If this new theory were the correct theory of the cause of action, the Carter case would possibly support it, but not being the true theory, it is clearly distinguishable, and was distinguished in the original opinion. This much has been written to demonstrate, even to the conviction of appellee’s counsel, that our analysis of the cause of action, as originally given, was correct, and that we were not overreached by the ingenuity of appellant’s counsel, nor misguided by the lack of proper acquaintance with the record. There is no occasion to review the numerous cases cited by counsel upon the general doctrine that the master is liable for the torts of his servants committed within the scope of his employment and duties* This doctrine is conceded.
An appeal is made to change the mandate in this case so as to order a new trial instead of a judgment
The petition is overruled.