16 Ind. App. 486 | Ind. Ct. App. | 1896
Lead Opinion
The history of this case in brief is, that the appellee was appellant’s brakeman on one of its freight trains, and experienced in the duties of that position. He was injured at the station of Bensselaer, while in the line of duty and while engaged with the conductor of his train and the station agent in unloading a boxed piano from a car to the station platform. The piano weighed about eight hundred pounds. The station platform was thirteen feet wide and in good condition, but on the morning of the accident, about ten o’clock, it was covered with a thin scale of ice. Appellant had provided proper skids for the use of its employes in unloading heavy freight. The use of the
The appellee’s counsel contend that the gist of the negligence charged and found is the defective floor with the holes burnt in it, and the consequent stumbling of the conductor into the hole, causing him to lose control over the piano; that this was the proximate cause of the injury, and that the other defects, viz: the loose iron band and the projecting nail, as well as the other matters incidentally mentioned as among the conditions existing at the time of the accident, were only “concurrent causes combined with the efficient and proximate cause” mentioned.
The special verdict, when stripped of mere conclusions and evidentiary facts, leaves it very difficult to determine as to just what caused the piano to fall upon appellee, but it seems to have been a combination of causes, including the projecting nail, the slippery condition of the platform which caused the appellee to fall, and the sudden pushing of the piano by the conductor so as to cause it to plunge forward on the appellee. It is difficult to ascertain from the jury’s findings whether the stepping into the hole by the conductor' was the cause of the falling of the piano, or whether the violent jerking of the instrument by him caused the conductor to slip and fall into the hole. On this subject the jury find, that the nail head in the sill of the car door “prevented, for a few seconds, the free and unobstructed progressive movement of the piano,” when “the conductor suddenly and without notice to plaintiff jerked and pulled the inner end violently upward, and pushed the same eastward and forward, forcing the piano over the iron strap obstructing its passage, with great suddenness,
If the injury was caused by the negligence of the conductor in violently jerking the piano, there can be no liability, for that was the act of a fellow servant, clearly. This point was fully decided in the case of Louisville, etc., R. W. Co. v. Isom, 10 Ind. App-. 691. In that case a gang of men were engaged in loading rails upon flat cars, the foreman of the gang having- absolute power to hire and discharge men, and to whose orders all of the men owed obedience-. This foreman was himself engaged with the men just as the conductor here was engaged in the performance of the service in which the plaintiff was injured. It was sought to hold the railroad company liable because the foreman was claimed to be a superior officer respecting the performance of the work, in which the plaintiff received his injury. The court quoted approvingly from Judge Lotz in Cole Bros. v. Wood, 11 Ind. App. 37, as follows: “The same individual may combine in his own person the functions of both master and servant. When such person performs a servant’s duty, no matter what his rank or title may be, whether superintendent, manager, agent, foreman or boss, he is, in the performance of such duty, deemed
Granting, however, that the gist of the negligence relied upon consists, as appellee contends, in the defective car floor, we do not think the appellee has shown any liability on the part of the appellant. It is not sufficient to prove negligence and an injury, but, as appellee admits, the negligence charged and relied upon must be shown to have been the proximate cause of the injury complained of. Here we have a defective car; that is to say, it has a hole in its floor sufficiently large to admit a man’s foot. The conductor could not help but see this hole, and how it was that he was required to stand immediately over it until forced into it by the weight of the piano, without gross negligence on his part, is difficult to understand. But if the accident was the result of the conductor’s negligence it was, as we have shown, the negligence of a fellow servant, for which appellant is not liable.
But, conceding the negligence to be that of the appellant, it is clear to us that the consequence claimed from such negligence is too remote. According to the same logic, if the conductor had been carrying a loaded revolver in his pocket and by reason of the fall and stepping into the hole it had been discharged and had wounded the appellee, the company would have been responsible. The mere statement of such a proposition is enough to condemn it. The appellant may have been negligent in failing to repair the floor of the car, but, if so, it is not liable for every remote consequence of such omission. It is only the proximate and not the remote consequences of its negligence for which the appellant can be made to answer. There may be a thousand results which may in some sense be attributable to the holes in the floor of the car, bxxt it cannot and will not be claimed with any degree of
We have had occasion heretofore to consider the question of proximate cause and review the authorities which we found in the course of our examination. Reid v. Evansville, etc., R. R. Co., 10 Ind. App. 385. It is not necessary again to enter upon an examination of the cases there reviewed. The rule stated in the case cited, that “if injury resulted from the negligent act or omission of the defendant, such act or omission will be deemed the proximate cause, unless the consequences were so unnatural and unusual that they could not, by the highest practical care, have been foreseen, and consequently provided against,” is founded upon no less authority than that of our Supreme Court, and is a reasonable rule. That it applies with peculiar force to the case in hand cannot be doubted. To say that the appellant, should have anticipated an accident of such a peculiar and unusual character as the one we have here to deal with, or anything akin to it, would be unwarranted.
The celebrated Squib Case, to which one of the appellee’s counsel alludes, can have no application here. In that case the defendant threw the dangerous missile into a market house crowded with people. He was bound to anticipate that the squib would explode, and its burning fragments might, and probably would, be thrown upon other persons in the crowd than the one at whom it was aimed. Scott v. Shepherd, 3 Wils. 403.
Hence, assuming'that the gist' of the negligence charged is the defective car, and leaving out of consideration all questions as to other causes combining to produce the injury, as well as the questions of contributory negligence, assumption of risk, or whether
Judgment reversed, with directions to the court below to render judgment on the special verdict in favor of the appellant.
Dissenting Opinion
Dissenting Opinion.
I am of opinion, upon the assumptions stated in the opinion of the majority, that the holes in the floor were the proximate and not the remote causes of the injury, and that the accident, while an unusual one, was a natural and direct result of the negligence of appellant.
