139 Ind. 430 | Ind. | 1894
The facts in this case, as shown by the record, are these:
The appellant, as lessee, operates the Jeffersonville, Madison and New Albany Railway. It runs a passenger train from Louisville, via Jeffersonville, to New Albany, called the “dinkey.” The crew consists of a conductor, brakeman, engineer and fireman. They go on duty at 5 a. m. each day, and, as appears by the company’s card, remain on duty continuously until midnight. On April 28, 1885, the crew, consisting of Bush, conductor; Brooks, brakeman; Parr, engineer; and Eisele, fireman, took the “dinkey” train to run from 5 A. m. until midnight. There were fourteen stops each way. No provision was made for the men to get their meals. The crew lived in New Albany. They could not work nineteen consecutive hours without'food. The fireman’s little daughter brought his meals in a pail, which he ate on the engine.
It is not shown how Brooks, the brakeman, lived, as the company had him in the service on the road so that he was not present at the trial. On the afternoon of April 28, 1885, appellee’s intestate, Richard McCaffrey, the section boss, was at work with four laborers'surfacing the track in the city of New Albany. His hand car Was standing in an alley immediately north of the track and a few squares east of the State street station,- the
Parr, the engineer, testifies: “That was the only way I had to get something to eat unless it was brought to me in a basket.”
A special policeman named Shay, in the employ of the
It was shown by the appellant that on previous occasions they sometimes let little hoys climb on the engine and ring the bell when the engineer was off .securing something to eat, but it was not so in this instance. There was no one to stand on the rear platform, as there should have been, or otherwise to warn the decedent and his men that the train must move backward at once. Eisele reversed the engine and put on steam and moved back just as McCaffrey and his men were putting the hand car, which weighed 700 pounds, on the track. They put it on in the usual manner; that is, they carried it on the track and placed it at right angles therewith, and then lifted it quarter round so as to put the wheels on the rails. As they were so engaged the train backed silently down upon them. Perry Quirk, one of the section hands, tells the rest of the story in this artless way: “It was just six o’clock, and we were putting on the hand car at the alley. We had hold of her, and were trying to put her on, and I seen the train coming up and I said, ‘boys, we can not make it.’ We were looking toward the train and we could see the cars coming down, and I said ‘we can not make it, ’ and we dropped the car and stepped out. I hollered; I said ‘boys, we can not make it.’ I seen McCaffrey stepping back from the car, and the next I saw him fall. That is all.”
William Wren says: “When the train struck the hand car they had got the wheels parallel with the rails with ‘two wheels inside the track and two outside.’ I saw him fall but did not see him struck. Pie fell across the rail * * * and the car struck him and drug him down, but did not pass over his body. It drug him ten feet. It rather slipped upon him and shoved him along.”
Pie was mortally hurt, and in intense pain and agony. From the injuries so received he afterwards died. They brought a train down and carried him into the cars to take him home. While aboard the train Shay, the special policeman, sent two or three men into the car to obtain admissions from him. Among these was a constable named Graham, who was a by-stander. Graham said:“I do not think you are badly hurt.” The suffering man answered, “he did not think he could live.” Graham then, in the presence of conductor Bush, inquired of him as to who was to blame, saying: “Do you blame anybody?” To which he answered: “I don’t; it was all my fault; I do not blame any of the boys at all for this. ’ ’ “He said he wanted to save the hand car, to keep it from being mashed up. Pie was in fear of being discharged for neglecting his own duty. ’’ Parr went to see him the next morning. McCaffrey was asleep, and under the influence of morphine. After a while he roused up, and Parr, who seems to have been there to talk to him, says that in the course of a conversation he said to McCaffrey: “I am mighty sorry for it,” to which he replied, “I don!t blame you at all.” The widow, who was present on this occasion, denies that any such statement was made. After Bush, the conductor, had returned from supper and talked with McCaffrey and others on the car,
“New Albany Station, April 28, 1885.
‘ ‘ To Superintendent:
“First section 27. Train northward. Engine 822. Engineer, John Parr. Conductor, C. G. Bush. Place and time, 5:40 p. m.) main track, alley between Bank and Pearl. What caused it? Putting hand car on track and backed up, and putting hand car out of way, got caught between hand car and track. Name, Richard McCaffrey. Flesh wound on right side. Two ribs on side. Three cars next to engine. Nature accident: Putting car on track when train backed up, tried to get away, fell and train pushed hand car on him.
“(Signed) C. G. Bush.”
This statement was made just after the accident, when the transaction, as observed, was fresh in the minds of the actors and bystanders, and is the only one in the record' showing clearly how McCaffrey happened to receive his injuries.
It is true Bush was not an eye witness to what transpired. It is likewise true that it was made after Bush had seen Brooks, the brakeman, who was standing at the switch when the event happened. As the appellant failed to bring him, as a witness, to the trial, although in its employ, running between Louisville and Indianapolis at the time on a passenger train, it is fair to infer that he saw the accident, and would have testified to the facts contained in the despatch herein set forth. On these facts we can not say that McCaffrey was incautious. A trusty servant, he made an effort to save the hand car then in his care; seeing they could not, the crew abandoned it to save their lives, when, in the language of the despatch, he “tried to get away, fell, and the train
In view of the official report made by the conductor on that fatal day, we need not disturb the judgment of the lower'court on the ground that McCaffrey recklessly sacrificed his life in order to save the hand, car and keep his place.
It is true McCaffrey knew the engineer and conductor were compelled by hunger to leave the train at times and run home to get something to eat. But there is no proof that he knew they had left the train on this afternoon. It was running back and forth continuously, from morning until night.
As- we understand the logic of the accomplished counsel for the appellant, it is as follows:
2. The absence of the conductor and engineer was the proximate cause of McCaffrey’s death.
3. That both the appellant and McCaffrey knew, before the fatal day, that the conductor and engineer habitually left the train at times during the nineteen hours of constant duty to get something to eat; that this was in violation of the rules of the company, and in disregard of their duty under the law.
4. That having this knowledge, he was bound to abandon the service or take upon himself the risks incident to operating a train with a deficient crew while part were at tlieir meals.
The four propositions involved in his position, counsel tersely states as follows:
“Moreover the evidence, so far from showing that Mc-Caffrey did not have knowledge of the offending habits of his fellow-servants, discloses that he did, in fact, have knowledge, and no excuse is shown for his thereafter remaining in the service.”
We think the doctrine of fellowship between trainmen and trackmen so well settled in this State that a citation of authorities to support it is unnecessary. In this case appellant’s counsel frankly admits that his company had, at least, “constructive notice,” that the engineer and conductor were “in the habit of leaving their trains to get their meals.”
It is a recognized rule of the courts that if the negligence of a master combines with negligence of a fellow-servant, and the two contribute to the injury of another servant, the master is liable. Franklin, Admr., etc., v. Winona, etc., R. R. Co., 34 N. W. Rep. 898; Elmer v. Locke, 135 Mass. 575; Grand Trunk R. W. Co. v. Cummings, 106 U. S. 700; Coppins v. New York Central, etc.,
In Boyce v. Fitzpatrick, 80 Ind. 526, it is said: “While a servant assumes the risk, more or less hazardous, of the service in which he. engages, he has a right to assume that all reasonable attention will be given by his employer to his safety, so that he will not be carelessly and needlessly exposéd to risks which might be avoided by ordinary care and precaution on the part of his employer, and where, in the absence of such care and precaution, an employe is injured, the employer is liable, although the negligence of a fellow-servant contributed to the injury complained of.” This principle was approved in Louisville, etc., R. W. Co. v. Berkey, 136 Ind. 181.
In our opinion the rule is a just and salutary one, and we ought not depart from it. Unless it be that a master has a right to require a servant to stand at his post of duty without food or rest for nineteen consecutive hours every day, Sundays included, and that such conduct is not a breach of duty to the public, as well as its other servants, it follows that the appellant, in this case, has not performed its duty towards decedent, without which it is liable, if this negligence was the proximate cause of his death. That it was, is clear. The law of nature is inexorable in its demands. The cravings of hunger must be appeased. The laws of humanity declare that every man, fit to be a member of a train crew, must have three meals, some rest, and eight hours’ sleep a day.
The appellee well says: “Deprived of these requisites of intelligent life, a soldier becomes a coward, a workingman a drone.” Any being would lose his strength if worked a few months by the time schedule provided for this crew. Every statute and employer’s rule is
“It is the duty of the railway not to increase the perils of its servants by the inadequacy of the force employed in any particular work; and, in particular, trains must be manned by a sufficient number of train hands.” Patterson’s Railway Accident Laws, section 297; Flike, Admr., v. Boston, etc., R. R. Co., 53 N. Y. 549; Booth v. Boston, etc., R. R. Co., 73 N. Y. 38; Moak’s Underhill on Torts, 47.
We think it clear that the appellant was guilty of a breach of duty toward the public, including McCaffrey, by operating -the train with only a fireman and a brakeman, because it was its duty to have an adequate number of competent men on the train to handle it and give notice of its approach. And when, by appellant’s conduct, it became necessary for its two chief employes to
Rule 40 provides that the whistle is to be sounded three times when a standing train is to move backward. Rule 40 provides that before starting,the bell must be rung.
Rule 110 reads as follows: "When a train is run backward (except when shifting and making up trains in yards), a signalman must be stationed in a conspicuous position on the rear car, so as to perceive the first sign of danger, and immediately signal to engineman.”
The evidence shows that all these rules were violated by the company at the time of the accident.
Impliedly conceding all these facts, the appellant seeks to escape responsibility, by urging that McCaffrey negligently contributed to his own death. If this were true, the general verdict of the jury to the contrary should be set aside. No difference how derelict of duty the company was, if McCaffrey saw or knew the train was backing on him, and going beyond him, he was bound to exercise the caution which the law imposes on every man to take care of himself, even at the risk of losing his position. But as there is evidence in the record strongly tending to establish that he was "stepping back from the car,” and "tried to get out of the way,” fell, and the "train pushed” the “hand car on him” at the time the calamity befell him, we are not prepared to say that the jury falsified the facts when they found he was not guilty of negligence contributing to the result. Complaint is made that the court refused to give the jury the 16th and 17th instructions asked by defendant. The 16th states the proposition that if McCaffrey knew the engineer and conductor were in the habit of absent
The deceased is admitted, and was shown, to have been a man of intelligence, strength, and integrity, of the age-of 41 years. ITe had been promoted, and under the rules was “in the line of promotion dependent upon the faithful discharge of duty, and capacity for assuming increased responsibilities.” The damages are not excessive for the loss of such a man. In our opinion the cause was fairly tried.
The judgment is affirmed.