146 Ind. 564 | Ind. | 1896
Appellee’s intestate, while in appellant’s service as brakeman, was killed when in the act of coupling cars upon appellant’s road, and this action was brought to recover damages therefor upon the ground that his death was caused by appellant’s negligence.
Appellant moved the court to render judgment in its favor on said verdict, which motion the court overruled and rendered judgment in favor of appellee.
These rulings of the court are severally assigned as error.
The objections urged against the complaint are such as could only be presented by a motion to make more specific.
It has been uniformly held in this State that a general allegation of negligence is sufficiént to withstand a demurrer for want of facts, unless the contrary appears from the facts pleaded, and that under such allegation the facts constituting the negligence may be given in evidence. The same rule applies to the averment that the injured party was without fault or negligence. Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151; City of Elkhart v. Witman, 122 Ind. 538; Cleveland, etc., R. W. Co. v. Wyant, 100 Ind. 160; Hammond v. Schweitzer, 112 Ind. 246; Louisville, etc., R. W. Co. v. Jones, 108 Ind. 551, and cases cited; Town of Rushville v. Adams, 107 Ind. 475, 57 Am. Rep. 124.
It is equally well settled that a defendant in an action for personal injuries is entitled to have the complaint state the specific acts or omissions of the defendant which constitute the negligence relied upon, as well as all the surroundings and existing conditions and what occurred at the time of the injury. Peerless Stone Co. v. Wray, 143 Ind. 574; Pittsburgh, etc., R. W. Co. v. Adams, supra; Pittsburgh, etc., R. W. Co. v. Hixon, 110 Ind. 225; Cincinnati, etc., R. W. Co. v. Gaines, 104 Ind. 526; 54 Am. Rep. 334; Town of Rushville v. Adams, supra; Louisville, etc.,
While this is true, it requires a motion to make more specific to obtain such relief, and unless such motion has been made and overruled and proper exception saved, no question can be presented here as .to such matter. The court did not err in overruling the demurrer to the amended complaint.
The special verdict shows that appellant received a car from another company at Frankfort, Indiana, for transportation over its lines, and that appellee was injured while attempting to couple the same to a locomotive on appellant’s road.
The first question presented by the motion for a judgment on the special verdict in favor of appellant is as to the liability of railroad companies to employes for injuries occasioned by a defect in foreign cars received only for transportation over its lines.
It is the duty of a railroad company to exercise ordinary care in furnishing reasonably safe cars and other appliances, and also to exercise ordinary care by inspection and repair to keep them in reasonably safe condition, so as not to unreasonably expose its employes to unknown and extraordinary hazards. Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440; Louisville, etc., R. R. Co. v. Orr, 84 Ind. 50; Louisville, etc., R. W. Co. v. Buck, 116 Ind. 566; Cincinnati, etc., R. R. Co. v. McMullen, 117 Ind. 439; Hoosier Stone Co. v. McCain, Admr., 133 Ind. 231.
The railroad company is not required to furnish cars or appliances that are absolutely safe, or to maintain them in that condition. The company is not an insurer of the safety of the employes against injury. Indiana Car Co. v. Parker, 100 Ind. 181. Cincinnati, etc., R. W. Co. v. Roesch, 126 Ind. 445; Titus v. Railroad Co., 136 Pa. St. 618, 20 Am. St. 944, 20 Atl.
The company is not liable for injuries caused by hidden defects of which it had no knowledge, and of which it could not have known by the exercise of ordinary care.
The master is only charged with knowledge of that which by the exercise of ordinary care he would have discovered.
He is not required to resort to tests that are impracticable, or unreasonable and oppressive, or which would be incompatible with the proper furtherance of business, and which are only required to insure, absolute safety. Smith v. Chicago, etc., R. W. Co., 42 Wis. 520; Grand Rapids, etc., R. W. Co. v. Huntly, 38 Mich. 537, 546, and cases cited; DeGraff v. New York, etc., R. W. Co., 76 N. Y. 125; Lafflin v. Buffalo, etc., R. W. Co., 106 N. Y. 136, 60 Am. Rep. 433, 12 N. E. 599; Flood v. W. U. Tel. Co., 131 N. Y. 603, 30 N. E. 196; Phila., etc., R. R. Co. v. Hughes, 119 Pa. St. 301, 33 Am. and Eng. R. R. Cases, 348, and note 13 Atl. 286; Wharton on Negligence, p. 213.
If the duty of inspection has been performed with ordinary care and a defect is found afterwards to exist, but not discovered at the time, the master is not liable for an injury caused thereby, unless he had knowledge of such defect. Hull v. Hull, 78 Me. 114, 3 Atl. 38; Nason v. West, 78 Me. 253, 3 Atl. 911; Baldwin v. St. Louis, etc., R. W. Co., 68 Ia. 37, 25 N. W. 918.
The duty of a railroad company as to foreign cars received in regular course of . business for transportation over its lines is that of exercising ordinary care in inspecting the same to-see if they are in reasonably safe condition of repair, and if found to be out of repair to put them in a reasonably safe condition of repair, or notify its employes of the condition of such
The inspection which a company is required to make of such a car is not merely a formal one, but should be made with ordinary care, that is, the inspection should be such as the time, place, means and opportunity, and the requirements and exigencies of commerce will pérmit. If the company has used ordinary care to secure competent inspectors and inspection is made with ordinary care, under the circumstances, taking into consideration the time, place, means and opportunity for inspection, and the defects, if any discovered, are repaired or due notice thereof given to the employe, the duty resting upon the company is discharged. It is not liable for injuries caused by hidden defects which could not be discovered by such inspection as the exigencies of the traffic will permit. Chicago, etc., R. W. Co. v. Fry, supra.
The company receiving such foreign car is not bound to repeat the tests which are proper to be used in the original construction of the car, but may assume that all parts of the car which appear upon examination to be in good condition are in such condition. Ballou v. Chicago, etc., R. W. Co., 54 Wis. 257, 11 N. W. Rep. 559, 41 Am. Rep. 31.
It would seem, that if such car were old, dilapidated, or obviously defective, ordinary care would require a more careful inspection than if there was nothing un
A railroad company is not negligent in receiving and passing over its lines cars different in construction from those owned and used by itself, if the same are not so out of repair or in such a defective condition as can be discovered by ordinary care. Baldwin v. Railway Co., 50 Ia. 680; Indianapolis, etc., R. R. Co. v. Flanigan, 77 Ill. 365; Kohn v. McNulta, 147 U. S. 238, and cases cited.
It is insisted, however, by appellant that “the court held in Neutz v. Jackson Hill Coal and Coke Co., 139 Ind. 411, that inspectors of a foreign car received for transportation are fellow-servants of those operating the train.” The cars in that case were delivered to the Jackson Hill Goal and Coke Co., the appellee, on its switch, by a railroad company for the purpose of permitting said Jackson Hill Coal and Coke Co., the appellee, to load them with coal. Said appellee did not receive cars for transportation over any line of railroad, and was not engaged in any such business. The rule applicable to railroad companies in regard to inspecting foreign cars did not therefore apply to the appellee in that case. McMullen v. Carnegie, 158 Pa. St. 518, 23 L. R. A. 448, 27 Atl. 1043.
Appellant insists that the special verdict does not find facts from which the court can say that the inspection made was not such as is usually made by ordinarily careful and prudent inspectors under like circumstances, and that, therefore, as there is no finding of facts showing the want of ordinary care on the part of appellant, the judgment should have been rendered on the verdict in favor of appellant.
The purpose of the special verdict is that the jury may find the facts within the issues made by the pleadings, and the court then declares the law there
That part of the special verdict essential to the determination of this question is as follows:
“Thirteenth. When standing upon the track, the drawbar and couplings of said oil-tank car were apparently in proper position, and in good repair, and the defects and lack of repair were not observable to said Douglas, nor did he have any notice or reason to think that said drawbar or couplings were in any way insufficient or out of repair. They could only have been ascertained by close inspection under the car. ******
“Fourteenth. At said station, Frankfort, the defendant maintained a resident car inspector, whose duty it was to inspect all cars of defendant and of other companies, before placing them in the trains of defendant at said station; that said inspector did inspect said car, but only superficially and hurriedly, by looking it over without tools or other manual tests,occupying not to exceed five (5) minutes in said inspection, and failing to discover the condition and need of repair of said drawbar and attachments; that to have made an efficient and proper inspection and examination thereof would have required not less than fifteen minutes, and with no other inspection, said car was ordered into said train. The defective condition of said drawbar and attachments could have easily .been discovered by a reasonable and ordinary inspection thereof by said inspector if competent to make the same, but said inspector did not make the same, and it has not been shown by the evidence that said inspector was sufficiently skilled and competent to make the same.”
In making an inspection it is the duty of the inspector to use the usual and ordinary tests, such tools as persons of ordinary prudence use, if any, under like circumstances. No man is held to a higher degree of skill or care than a fair average of his trade or profession, and the standard of due care is the conduct of the average prudent man. If the inspection is made in the usual and ordinary way, the way commonly adopted by those in like business, it cannot be said that it was done negligently. In determining whether an inspection was made with'ordinary care, a jury can only, find facts showing whether the same was made in the usual and ordinary manner, the one commonly adopted by men of ordinary care and prudence engaged in the same business under like circumstances. If it was so performed it was made with due care, and a jury cannot be permitted to say that it was negligent. They cannot be allowed to set -up a standard which shall in effect dictate the customs or control the business of a community. Titus v. Railway Co., supra; Iron-Ship Building Works v. Nuttall, 119 Pa. St. 149, 13 Atl. 65; Tuttle v. Detroit, etc., R. W. Co., 122 U. S. 189.
The finding “that to have made an -efficient and proper inspection and examination thereof would have taken fifteen ^minutes,” is a mere conclúsion.
The standard thus fixed by the jury may be pred
The special verdict does not state any facts showing that the car inspector was incompetent. Appellant was not required to prove that the car inspector was “sufficiently skilled and competent” to act as inspector at Frankfort. The presumption in this case is that he was competent until the contrary is shown. Evansville, etc., R. R. Co. v. Tohill, Admx., 143 Ind. 49; Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156, and cases cited.
The presumption is that appellant exercised ordinary care in the selection of the car inspector with reference to fitness and competency, and that the car was inspected with ordinary care; that is, the inspection was such as the time, place, means, opportunity, and requirements and exigencies of commerce would reasonably permit. Disregarding the improper matters contained in the special verdict, the facts set forth do not overcome or contradict this presumption.
It follows that the court erred in rendering judgment in favor of appellee.
It is claimed by appellant that the case made by the verdict does not correspond with the allegations or theory of the complaint. As the cause must be reversed for other reasons, and the complaint may be
We think-justice requires that instead of directing a judgment upon the verdict that a new trial be awarded.
Judgment reversed, with instructions to award a new trial, with leave to amend the complaint, and, for further proceedings not inconsistent with this opinion.
