144 Ind. 687 | Ind. | 1896
This suit was by the appellee against the appellant, and his complaint consisted of three paragraphs. One paragraph tendered the issue that the appellant had been negligent in requiring the appellee, a brakeman in its employ, to couple two freight cars, not owned upon the road, the drawbars of which were not of uniform standard, but were such that one stood higher than the other, and that said cars were constructed with deadwoods and with floors projecting over the ends of the sills so that when he attempted to make the coupling his arm was caught between the deadwoods and crushed. As pertinent to this issue the appellant requested the trial court to charge the jury that “It was not negligence for the defendant company to use cars on its railroad and in its yards, the couplings or ‘deadwoods’ of which were not
The question is presented on behalf of the appellant as to the effect of the modification of the rule announced in the charge refused, as we find it in the words above italicized.
The following decisions sustain the rule that it is not negligence for a railway company to use, of its own or those of another company in the regular transportation, cars constructed with uneven couplings or deadwoods. Michigan, etc., R. R. Co. v. Smithson, 45 Mich. 212; Smith v. Potter, 46 Mich. 258; Ft. Wayne, etc., R. R. Co. v. Gildersleeve, 33 Mich. 133; Huelett v. St. Louis, etc., R. R. Co., 67 Mo. 239; Toledo, etc., R. R. Co. v. Black, 88 Ill. 112; Toledo, etc., R. R. Co. v. Asbury, Admx., 84 Ill. 429; Indianapolis, etc., R. R. Co. v. Flannigan, 77 Ill. 365; Whitwain v. Wisconsin, etc., R. R. Co., 58 Wis. 408; Kelley v. Abbott, 63 Wis. 307; Way v. Illinois, etc., R. R. Co., 40 Ia. 341; Baldwin v. Chicago, etc., R. R. Co., 50 Ia. 680; St. Louis, etc., R. W Co. v. Higgins, 44 Ark. 293.
Many of these cases illustrate the impracticability of transferring freight from the car of one company to that of another at each change of railway line or system; the absence of any regulation by which the cars of all lines or systems are required to be of uniform construction and the propriety of the rule which requires the brakeman, whose duty involves the coupling of cars, to increase his care in proportion to the
In this case .the appellee testified that after he went to work upon the line in question, he learned that “the cars .used on that division were equipped with
It was also testified by another that the cars which, caused the injury did not vary from the general rule; they were the standard cars; the standard Pennsylvania coal cars. And it was testified also by another, that cars with deadwoods such as described were run into Indianapolis on all roads; that they were in use by others than the Pennsylvania Company because they were considered safer by all railroad men; that seventy-five out of one hundred would prefer coupling a car with deadwoods.
The necessities of the position of brakemen and the knowledge possessed by the appellee charged him with the duty of looking for increased hazards and of exercising greater care when cars of different construction were to be coupled.
It should be remembered that the case presents no question of defective construction or of ill repair, it is simply a question of difference in form of construction.
The charge given recognizes the rule that it was not negligence to take the cars upon the road and to place them in the train, and it was, perhaps, needless that we should have said so much in support of that rule, but the words of the charge in italics engraft an unauthorized condition upon the rule. There was no allegation or issue that the “couplings or deadwoods” were unsafe otherwise than by the form of construction. The charge directed the jury that the appellant was not negligent, in using cars with uneven couplings or deadwoods, “provided said deadwoods or couplings were in other respects safe appliances.” Giving the proviso its natural and necessary force it not only introduced a condition to the rule of non-negligence, which condition was unauthorized by any issue, but it required more of the appellant than the law would
In the first of the cases just cited it was said: “The master’s obligation is not to supply the servant with absolutely safe machinery, or with any particular kind of machinery; but his obligation is to use ordinary and reasonable care not to subject the servant to extraordinary or unreasonable danger. When a master employs a servant to do a particular kind of work, with particular kind of implements and machinery, the master does not agree that the implements and machinery are free from danger in their use, but he agrees that such implements and machinery, to be used by such servant, are sound and fit for the purpose intended, so far as ordinary care and prudence can discover.” As we have already seen, the question here at issue did not involve any inquiry as to an imperfection or danger in the appliances named, excepting in the lack of uniformity in height. Other imperfections in them or dangers in their use were not the subject
It is objected by the appellee that the instructions asked by the appellant and refused by the court are not in the record for the reason that they were asked as an entirety and there was no exception to the refusal to give them as an entirety. The court’s refusal was several, and the appellant’s exceptions were several, and the action of the court and the exceptions so taken are brought into the record with reference to the several charges so asked. This practice has never been condemned by this court, and we do not observe its analogy to the practice upon joint exceptions which are sought to be presented severally.
If appellant’s instructions were not in the record the error here found is predicated upon the charge given by the court which is not claimed to be out of the record.
It is also complained by the appellee that the evidence is not in the record because no order book entry of its filing with the clerk is disclosed. That it must be filed and that this fact must appear upon the face of the record has been many times decided, but that it ¡must appear from an order book entry is not required. While an order book entry of the filing would verify the fact of filing, it is not required any more than in
Objection is made that the record discloses that all of the evidence given upon the trial was not incorporated in the bill of exceptions and, therefore, that we should not consider the evidence. In support of this objection counsel cites two offers, by him made in the lower court, to prove, in blank. The omissions are not of evidence and the blanks carry the assumption that the offers were never completed. In further support of this objection counsel cites testimony identifying a map as that of the locality of the accident. It is not there disclosed that the map was introduced in evidence, and its identification and proof of its correctness does not establish the introduction of the map in evidence against the judge’s certificate that the bill of exceptions contains all of the evidence.
Questions have been argued orally and by elaborate briefs as to the constitutionality of the “Employer’s Liability Act,” Acts 1893, p. 294. The liability of the appellant under said act was probably not in question under two of the three paragraphs of complaint, and was certainly not involved in the ruling upon which we have declared error.
It is not the practice, and it may be doubted if it is the privilege, of this court to pass upon the constitutional validity of an act of the general assembly when the case in which that validity is questioned may be correctly decided without passing upon that question. Henderson, Aud., v. State, ex rel., 137 Ind. 552 (24 L. R. A. 469), and cases cited.
The judgment of the lower court is reversed, with instructions to grant a new trial.