170 Ind. 20 | Ind. | 1907
Lead Opinion
Appellant appeals from a judgment rendered in favor of appellee for personal injuries claimed to have been caused by the former’s negligence. The accident happened at Stoney Island, a large distributing switchyard of appellant, near the city of Chicago, in the early morning of July 1,1903. The plaintiff, a practical switchman of sixteen years experience, was employed by appellant, and was acting as head switchman.of a crew engaged at Stoney Island in breaking up trains as they arrived in the yard, and switching the cars to the various roads and tracks to which they severally belonged. The plaintiff, being the head switchman, had control over the movements of the engine, and it was the duty of the engineer (which was faithfully performed) to
Two cars had been thrown out of the train on the main track and left standing. A little later the engine, pushing five cars, under the direction of the plaintiff, started down the track to pick up the two standing cars. The cars were backing toward the west. The plaintiff was riding on the side ladder near the northwest corner of the advanced car, which was car No. 3,847, containing the projecting nail. It was equipped with the Trojan coupler. The standing car had a coupler operating in the same way. The cars, by the devices, coupled by opening the knuckle of either one of the cars. It was not necessary to open both. The manner of coupling by these devices was by raising with the left hand a lever, located under the northwest corner of the car on which plaintiff was riding, to a holding notch that sup
The substance of these facts was averred in two paragraphs of complaint. A demurrer to each paragraph for insufficiency of facts was overruled. There was an answer of
The objection presented to these paragraphs by appellant’s counsel is that neither states sufficient facts to constitute negligence in appellant that appears to be the direct and proximate cause of the plaintiff’s injuries. In a nutshell, the first paragraph appears to be based upon a failure to
business will permit, to inspect such ear, to ascertain if it is in a reasonably safe condition, and if it is found to be out of repair, unfit," or unsafe for the business for which it is being employed, it must place such, car in a reasonably safe condition, or notify those of its employes who may be called upon to handle it of the danger or defect. Louisville, etc., R. Co. v. Bates (1897), 146 Ind. 564, and cases cited. So in this ease appellee owed the appellant, as one of its switchmen, the duty of giving car No. 3,847, from Buffalo, a reasonable inspection, which it is averred in the first paragraph of the complaint it did not do, and furthermore it was a duty owing to the plaintiff to mend any discovered defect, or dangerous condition, or to notify the plaintiff of the existence thereof, all of which, it is alleged in the second paragraph, the defendant failed to do.
Neither paragraph of the complaint is subject to the general objection stated, and, no special objection to either paragraph being pointed out, we hold both paragraphs sufficient.
Was appellant entitled to judgment upon the answer of the jury to interrogatories? The answers referred to are to the following effect: The plaintiff was injured while attempting to make a coupling between car No. 3,847, — “Duluth, South Shore & Atlantic Railroad Company,”- — and another car standing on the track. Car No. 3,847 was not in good repair, on account of a nail projecting from a bolt in the brake-beam, which brake-beam extended within six inches of the forward end of the car. Immediately before his injuries the plaintiff was riding on the outside ladder of the forward end of a short train that was backing down
Appellee insists that certain of these answers relating to material questions of fact are in positive conflict, and should therefore be held as destroying each other, and disregarded in passing upon the general effect of the answers as a whole. Those called in question we quote:
“Q. Was it not the duty of the engineer in charge of the engine pushing the cars at the time of the accident to obey the signals and directions of the plaintiff? A. Yes. ■ Q. Could not'the coupling which the plaintiff was attempting*29 to make at the time of the accident have been made with safety to himself by stopping the movement of the car upon which he was riding and opening the lmnekle thereon, and then causing the car to advance and make the coupling? A. Yes. Q. If the plaintiff had stopped the moving car and opened the knuckle and then moved it forward to the standing car, how much, if any, would it have delayed the business at which he was engaged? A. About one minute. Q. Could not the plaintiff have made the coupling, he was about to make when injured, with safety to himself by slackening the speed of the .moving car two or three car lengths distant from the standing car, and going in advance of the moving car and opening the knuckle of the coupler on the standing car and then stepping outside the track and allowing the cars to come together and couple? A. Yes. Q. Would not the speed of the moving car have been reduced by the engineer to a rate of speed allowing the plaintiff time to leave the moving ear and go in advance of it and open the knuckle of the standing car and clear the track, before the moving car arrived within dangerous proximity of the standing car, if the plaintiff had signaled the engineer to do so? A. Yes. Q. Was not the plaintiff injured by attempting to open the knuckle of the coupler upon the car, while the same was in motion, by stepping immediately, in advance of it? A. Yes. Q. Was it not unsafe to attempt to open the knuckle and make the coupling in the manner the plaintiff attempted to do it at the time he was injured? A. Yes. Those claimed to be contra are: “Q. Could not the coupling the plaintiff was attempting to make have been made safely and without injury to him by his going in advance of the moving car and opening the knuckle upon the standing car? A. No. Q. If you answer the foregoing ‘ No, ’ then answer ‘ Why ? ’ A. For lack of time and for having his back to the moving train. Q. Could not the plaintiff have made the coupling he was attempting to make at the time of the accident with perfect safety by going in advance*30 and opening the knuckle on the standing car which was to be coupled on the moving car, then stepping outside the tracks and allowing the cars to come together? A. No.” It is further answered that it was not a safer method of making the coupling for the plaintiff to go ahead of the moving car and to open the knuckle of the standing car than it was to attempt to make it by stepping in front of and attempting to open the coupling of the moving ear.
In Seekel v. Norman (1890), 78 Iowa 254, it was held, as indicated by the headnote, that “special findings will be understood and interpreted according to the evident intention of the jury, as shown by other and collateral findings, and
In Alhambra, etc., Co. v. Richardson (1887), 72 Cal. 598, it is held that answers to interrogatories should be construed to avoid contradiction if it can reasonably be done, and “when doubtful or obscure, reference may be had to the context for the purpose of ascertaining the true meaning. ” See, also, Brown v. Ohio, etc., R. Co. (1894), 138 Ind. 648, 655; 2 Elliott, Gen. Prac., §932; 20 Ency. Pl. and Pr., 369.
It is evident from two of the interrogatories and answers that the jury had in mind, when they made said last four answers, the nearness of the cars at the moment the plaintiff attempted to make the coupling. Interrogatory twenty-nine calls attention to the coupling the plaintiff was attempting to make, that is, was already engaged in trying to make, and as relating to that particular time, the ansAver is, he could not with safety to himself have made'the coupling by going forward and opening the knuckle of the standing car; and
Upon the strength of these findings appellant insists that even though car No. 3,847 was out of repair and defective' by reason of having the nail projecting from the bolt in the brake-beam, yet if appellee had used due care in his method of making the coupling no harm would have come to him from the nail; and to sustain the contention invokes the well-established rule found in the domain of master and servant, that when there are two known ways of doing a thing — one safe and the other unsafe — if the servant voluntarily and knowingly chooses the unsafe way, because easier and more convenient, or for other personal reasons, he will be held guilty of negligence, and if injured by reason
In the case of Haven v. Pittsburgh, etc., Bridge Co., supra, the defendant was reconstructing a bridge. To accommodate travel while taking down the old bridge the roadway was prepared to accommodate both vehicles and foot-passengers while the footways were being demolished. They were torn up for more than half way. The entrances to the footways were blocked, and the sentry informed the plaintiff and companion that they would have to take the roadway, as the footpaths were unfit for travel. They took the roadway, and when about two-thirds of the way over they left the roadway and entered upon the footway at a point the workmen had not reached in their work of tearing up. The roadway was perfectly safe for the rest of the distance. On the footway the plaintiff stepped on a'board lying bottom side up, with a nail protruding upward, that penetrated the plaintiff’s shoe, causing her to fall and injure herself. At page 627 the court said: “The case is brought directly within the familiar line of decisions, which hold that when a person, having the choice of two ways, one of which is perfectly safe, and the other of which is subject to
In the case of Quirouet v. Alabama, etc., R. Co., supra, the plaintiff, an employe, attempted to board a loaded flat-car, which was part of a train moving at the rate of five or six miles an hour. Said car was the fourth from the caboose, was the proper car for him to board, was equipped with low and convenient steps, and could have been boarded with perfect safety. In his effort to board the flat-ear he put his foot upon the journal, or grease box, and, springing, threw his hand and wrist around a heavy standard in the side of the ear, which rolled in its socket, causing the plaintiff’s foot and leg to fall under the wheels. The court said with respect to these facts: “While it was more inconvenient, still he [plaintiff] could have reached the car by going first upon the caboose, * * * which had appropriate appliances for use in going upon it, and it was his duty to use the more appropriate and less dangerous method. In such a case, the use of the more dangerous method, even though it be the one of greater convenience, would preclude a recovery, if injury results. * * * ‘If there are two apparent ways of discharging the required service, one more dangerous than the other, the employe is bound to select the latter, and is guilty of such negligence as will bar an action for damages if he selects the former and is thereby injured.’ ”
In §1121, supra, Mr. Bailey says: “ It is a familiar principle, which common sense as well as the rules of the law ought to teach any one, that where an employe of a railroad knowingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence.”
Suppose appellee, desiring to cross to the other side of the track, should attempt to do so by crossing under one of the cars of the moving train, and that while under the car an unexpected and unknown broken rod should catch his clothing and delay him so that he should be overtaken and injured by the wheels. Could it be said in that case that the broken rod would be the efficient and proximate cause of the injury?
Such a parallel cannot be avoided by saying that in going under the car he went into a dangerous place where his business did not call him, and where he was not expected to go, for appellee did precisely that thing when he attempted to open the knuckle of car No. 3,847 in the manner he did.
Dissenting Opinion
Dissenting Opinion.
I dissent. For present purposes it is unnecessary to consider the ultimate question of affirmance or reversal. My objection goes to the course of reasoning by which a reversal is reached. A word as to the evidence: The ear was moving at the rate of a slow walk, or, as otherwise stated, at a speed of about two miles an hour. The work was required to be done in haste. About one minute would have been lost if the car had been stopped to adjust the coupling. It would only have taken a second to open
The majority opinion is based on the answers to interrogatories. But there is not a fact found by the jurors in their answers in this case which can be said to be in necessary conflict with the general verdict. The finding that it was unsafe to make the coupling as appellee was attempting to do can be explained on the hypothesis that it was dangerous so to do with the car in its defective condition, a fact that appellee had no knowledge of. This very distinction was suggested in Baird v. Chicago, etc., R. Co. (1883), 61 Iowa 359, 361, 13 N. W. 731, 16 N. W. 207, where the court said that the jury’s finding must mean that the making of the coupling by the plaintiff “was more dangerous than it would have been if the ear to which he was to couple had been in the usual condition of a car to which coupling is made.” The question of proximate 'cause being ordinarily a question of fact (Davis v. Mercer Lumber Co. [1905], 164 Ind. 413; Chicago, etc., R. Co. v. Pritchard [1907], 168 Ind. 398, 9 L. R. A. [N. S.] 857; 1 Thompson, Negligence (2d ed.), §§161-164), the general findings commit the jury to the greatest possible extent to the proposition that appellee was not guilty of negligence in stepping in front of the car. There is certainly nothing in the answers to interrogatories to give aid or comfort to appellant.
It will be perceived that the court’s opinion, when reduced to its last analysis, amounts-to this: That a switch-man who steps in front, and attempts to walk in advance, of a car which is moving as fast as a slow walk, is guilty of contributory negligence, and this conclusion is reached, over the verdict of the jury and in disregard of expert testimony
All men take some risks, and it cannot in every case be affirmed that there is contributory negligence as a matter of law because the plaintiff voluntarily and unnecessarily exposed himself to danger. Beach, Contrib. Neg. (2d ed.), §37. As stated by this court in Town of Albion v. Hetrick (1883), 90 Ind. 545, 547, 46 Am. Rep. 230: “It is only when the standard of duty is fixed and certain, or where the measure of duty is defined by law, or when the negligence is so elepr and palpable that no verdict could make it otherwise, that the question of negligence becomes one of law and not of fact.”
If the question of negligence is one of fact where reasonable minds might differ as to the ultimate inference to be drawn, I do not perceive how this court can regard itself as warranted in saying that in this ease there was contributory negligence. As was said by the supreme court of Michigan in Ashman v. Flint, etc., R. Co. (1892), 90 Mich. 567, 574, 51 N. W. 645: “Are judges supposed to know anything more about the proper manner of performing a switchman’s or brakeman’s duties than jurors? The answer is obvious. A jury of twelve men, drawn from the body of the people, and from all the avocations of life, would be more likely to have among its members men familiar with switching or braking upon railroads than would the bench, composed of men whose whole lives have generally been devoted to one subject — the study and practice of law; and among these twelve men quite frequently might be found men who had been switchmen or brakemen. When the inquiry arises in any ease what' an ordinarily prudent man would have done under given circumstances, the judgment of twelve men is obviously better than the judgment of one, as the experience in life of twelve men must have been, collectively, more varied and extensive than that of any one man, however learned in the law he may be; and how men
It is a settled proposition that it is not negligence per se for a switchman to go between slowly moving cars to couple or uncouple them. Chicago, etc., R. Co. v. Lee (1902), 29 Ind. App. 480; Pittsburgh, etc., R. Co. v. Elwood (1900), 25 Ind. App. 671; Flutter v. New York, etc., R. Co. (1901), 27 Ind. App. 511; Illinois Cent. R. Co. v. Cozby (1896), 69 Ill. App. 256; O’Neill v. Chicago, etc., R. Co. (1901), 62 Neb. 358; Knapp v. Chicago, etc., R. Co. (1897), 114 Mich. 199, 72 N. W. 200; Eastman v. Lake Shore, etc., R. Co. (1894), 101 Mich. 597, 60 N. W. 309; Jarvis v. Flint, etc., R. Co. (1901), 128 Mich. 61, 87 N. W. 136; Munch v. Great Northern R. Co. (1898), 75 Minn. 61, 77 N. W. 541; 1 Labatt, Master & Serv., §334; Beach, Contrib. Neg. (2d ed.), §364; 5 Thompson, Negligence (2d ed.), §§5566, 5593, 5595.
Some limit must certainly be placed on the consequences of a servant taking the more hazardous course. As was said in Florida Cent. R. Co. v. Mooney (1898), 40 Fla. 17,
As regards the claim that the car should have been stopped, it strikes me that that is an academic, rather than a practical, view of the question. As was pertinently stated by one of the witnesses in this case, “you can’t run a railroad that way.” In this connection I quote the following observations of the Illinois appellate court, in Illinois Cent. R. Co. v. Cozby, supra: “It is manifest that in extensive yards, where much switching is to be done, the business of a railroad company could not be transacted, if every train was brought to a dead halt in order that cars might be coupled and uncoupled. We cannot hold that Craiglow was necessarily guilty of negligence because he undertook to un
It would, of course, be clear that had appellee fallen as the result of stepping in front of the car, for instance, by being caught by the brake-beam, he would have had no remedy, for he assumed that risk. In this case, however, he was injured — at least we may assume so from the majority opinion — by a defect in the car that he knew nothing of. If appellee would have accomplished his task without injury but for the protruding nail — an inference that the jury was authorized to draw — then it would not appear that the risk he took was in a legal sense contributory to his injury. As pointed out in 1 Bailey, Per. Inj., §1122: “The result is not the true test.” I do not find myself impressed with the argument that appellee was guilty of contributory negligence because if he had not been in the place, which for some other reason was dangerous, he would not have been hurt. Proximate cause must have some moral relation to the occurrence complained of. The law would' cease to be a practical science, and the courts would be led into the mire of sophistical discussion when once they began to recognize the view that the accidental propinquity of the plaintiff to the thing that did him harm had any necessary relation to his responsibility for the injury. It has been held in a number of jurisdictions, that where switchmen attempting to couple moving ears, have been injured by defects which had no relation to the hazards they assumed, it could not be said as a matter of law that their conduct was the proximate cause of their injuries. Lake Erie, etc., R. Co. v. Craig (1896), 73 Fed. 642, 19 C. C. A. 631; Curtis v. Chicago, etc., R. Co. (1897), 95 Wis. 460, 70 N. W. 665; Baird v. Chicago, etc., R. Co. (1883), 61 Iowa 359, 13 N. W. 731, 16 N. W. 207; Louisville, etc., R. Co. v. Pearson (1892), 97 Ala. 211, 12 South. 176. No case has been called to my attention which militates against the above authorities.
There may be room for doubt whether the jury was au
