132 Ind. 430 | Ind. | 1892
Lead Opinion
— The appellee brought this action against the appellant for damages resulting from an injury alleged to have been caused by the negligence of the appellant. The appellee was acting in the capacity of yardmaster on appellant’s railroad at Butler, Ind., and the injury is alleged to have occurred by reason of a defective engine.
It is alleged in the complaint that appellee’s duty was the making up of trains of cars, coupling and uncoupling cars; that the engine provided for and used in doing said work was, as appellant and her officers well knew, defective, unsafe and dangerous, and, as appellant well knew, had been thus defective, dangerous and unsafe for a long time prior to the injury; that the defect consisted in this: that the throttle of said engine leaked, and said engine was by reason thereof, and by reason of other defects which appellee is unable to specify, hard to handle, manage and control, and could not be so handled, managed and controlled as to be safe for those engaged in coupling and uncoupling the cars which were propelled by it; such difficulty in managing, handling and controlling being in part caused by the leaking of said throttle and in part by defects unknown to appellee, and which he is uuable to more particularly describe or specify, but that said defects combined were such that when said engine was reversed and caused to move backward it would often give a sudden spring or start, and instead of moving backward steadily and with regular motion would move with a sudden rush or spring, and that appellant had long known of said defective and dangerous condition of said engine; that appellant employed as engineer to use, run, manage and control said engine, one John Duerk, who was, as appellant well knew,and had long known, incompetent, unskilful, careless, and unfit to be entrusted with such employment,appellant’s agent, whose duty it was to employ such engineer, having long before been informed of the incompetency, unskillfulness, carelessness and unfitness
The manner of the injury is then alleged, showing that it occurred while attempting to make a coupling of the cars; that he signalled the engineer to run back, and that just as the cars were coming together, and as he was about to make the coupling, the engine ■ gave a sudden start or spring driving the cars together with great and unusual force and speed, so that before the appellee could withdraw his hand and step from between the cars he was struck by the one nearest the engine and thrown off his balance and his left hand thrown between the dead-woods and was so crushed and mangled that it became necessary to amputate the same, and it was accordingly amputated and lost to the appellee; that the injury was caused solely on account of the defective condition of the engine and incompetency and unskilfulness of the engineer, and appellee was without fault contributing to the injury.
Numerous errors are assigned. The first error complained of is that the court erred in overruling appellant’s motion to make the complaint more specific, in that the appellee should be required to state the length of time the engine had been defective, and the length of time the engineer had been negligent as alleged; the exact defects in the engine; the particulars which constituted the alleged incompetency, unskilfulness, carelessness and negligence of the engineer, and the extent and nature of the injury.
The complaint alleges that the throttle of the engine leaked, and that there were other defects which were unknown to appellee, and which he was unable to specify, but that the appellant had long known of such defects.
The appellee’s employment was not such as to require him to possess any knowledge as to the condition of the engine;
He alleges that the throttle leaked and that there were other defects known to appellant, and which were unknown to him, and which he was unable to specify. The complaint was sufficiently specific in this particular.
As regards the length of time the engine was out of repair and the engineer had been negligent, it is alleged that the defects had been long known to the appellant, and that it had long before been informed of the incompetency, unskilfulness and carelessness of the engineer, and had continued him in its employ notwithstanding such notice.
The exact time the company knew of such defects and incompetency and carelessness of the engineer is not material, and the complaint was sufficient, and the allegations as to the engineer's carelessness and incompetency was also sufficient.
The negligence charged ¿gainst the appellants in this case is the failure to keep in repair the engine used for making up trains, and permitting it to become and remain out of repair after having knowledge of its defective condition, and employing and retaining in its service an incompetent, careless and negligent engineer to operate such engine. Such negligence and failure of duty are alleged in plain, specific terms in the complaint. As we have said, the exact length of time that appellant had such knowledge is not material, it being alleged that the company did have knowledge. The particular defects in the engine should have been stated, if known to the appellee, but the necessity of specifically setting out all of the defects is avoided by the averments that there were other defects which were known to the appellant, but were not known to the appellee. Such being the fact the
There was no error in overruling the motion to make the complaint more specific.
The next alleged error complained of and discussed is the overruling of a demurrer to the complaint. There is no such question before us for eonsidei’ation. There was a demurrer filed to the complaint and overruled and exceptions reserved, but afterwards, on leave of court, the complaint was amended. The amended complaint superseded the original complaint, to which a demurrer was addressed, and there is no longer any question in the record as to the sufficiency of the complaint at the time the demurrer was ruled upon. The next question relates to the ruling of the court in refusing the appellee to answer certain questions when being examined under the statute authorizing the examination of parties. Sections 509, 510, R. S. 1881. On such examination appellant’s counsel asked the appellee the following questions :
123. Who has told you that the engine was out of repair?
125. Now, who told you all the above alleged defects of the engine ?
129. Now, in regard to the engineer Duerk, who told you that he was incompetent ?
The appellee refused to answer the questions, and the appellant appealed to the court and asked that he be ordered to answer them, and the court refused to require him to answer such questions. The statute, section 509, supra, provides that a party may be examined as a witness concerning any matter stated in the pleading. It is evident, we think, that the purpose of the statute is that a party may be compelled to testify as to all matters within his own knowledge stated in the pleading. If he has received an injury for which he has sued, he may be compelled to disclose all he knows about it,- how it occurred, and in this case all he knows about how the injury occurred, and as to the defective con
Some of these questions relate to facts stated in the pleading. The first asked him the name of the person who told him the engine was out of repair. The others are of the same character. They do not concern any matter alleged in the pleading. The right existed to examine the appellee fully as to the defect in the engine, which is the fact alleged, but who he talked with and who told him about the defects is not a matter alleged in the pleading.
There was no error in the ruling of the court.
The next alleged error is the ruling of the court in permitting appellee to amend his complaint during the trial and after the evidence was closed. This was a matter within the discretion of the court, and there is no abuse of discretion shown.
It is contended that such an amendment could only be made at the time it was done on proper showing supported by affidavit. The court had the right to allow it without such showing. Chicago, etc., R. W. Co. v. Jones, 103 Ind. 386; Meyer v. State, ex rel., 125 Ind. 335; Chicago, etc., R. W. Co. v. Hunter, 128 Ind. 213.
Appellant contends that the court erred in overruling its motion to strike out certain interrogatories propounded to the jury by the appellee.
The discussion of counsel relates solely to interrogatory numbered twenty-five. This interrogatory was clearly proper. It asks if Mudd, the foreman of the shops of appellant at Butler, was not notified in November, 1888, by Crider, an engineer, of the defective engine, that the engine was in an
We next come to the instructions given and refused.
Counsel first contend that instructions numbered eleven, given by the court, and numbered twenty-six, given at the request of the appellee, are erroneous. They both relate to the question of the measure of damages. These instructions are substantially the same. We do not deem it necessary to set them out. We see no objection to the measure of damages stated in either instruction. They state that the damages shall be ascertained on the basis of compensation, and be such as will fairly compensate him for the injuries sustained; that in making such estimate the jury should take into consideration appellee’s physical and mental suffering if any were caused by and arising out of the injury, the character of the injury, whether temporary or permanent, and great reduction, if any, in plaintiff’s ability to earn money caused by the injury, and that their verdict should be for such sum as will fairly compensate appellee for all injury thus sustained.
There was no erroneous statement of the rule governing the assessment of damages contained in either of the instructions.
Objection is made to the instructions given defining the master’s duty in regard to furnishing safe machinery and the keeping of it in repair. It is contended that by the language used in the instructions, and by the oft repeating of it, the jury were given to understand that the duty of the master went to the extent of requiring him to absolutely warrant the machinery, and that it must be free from latent defects. We have carefully read and considered the instructions, and we do not think they will bear the construction placed upon them by counsel for the appellant.
The court in the ninth instruction tells the jury that the master is not bound to use the highest care, nor to use the latest or most improved machinery, but he is bound to use
At the request of the appellant the jury was fully instructed as to the relationship of the master and servant, and as to the duty of the master in the employment of servants, and the risks of a fellow-servant, the difference in the obligations of a railroad company to a passenger and to an employee, and in the 16th instruction the jury are told that “ the law does not hold the master as an insurer of the safety or sufficiency of his machinery. His duty is fully discharged when he has used ordinary care in furnishing machinery and providing facilities and men for the keeping of the same in repair.” Taking the instructions as a whole, we think they fairly state the law.
The instructions are entirely too long, and contain repetitions in some instances, but the instructions favorable to the appellant, as well as those favorable to the appellee, are lengthy and present almost every conceivable legal principle that would be of any benefit to the appellant, so that we think no harm was done by the numerous instructions, and in some instances repetitions of legal principles favorable to appellee given by the court on its own motion 'and at the request of the appellee.
The third instruction relates to notice on the part of the appellant of the defective engine, and by it the jury are told that they “ may find such notice to be proved if you think it may be rightfully and reasonably inferred from the evidence given in the case, although there may be no direct testimony as to such notice.”
There was no error in giving this instruction. Facts may
Special objection is made to the 14th instruction in relation to the duty of the master and servant to be on the alert to ascertain defects and avoid danger. This instruction is in accordance with the law as held in the case of Louisville, etc., R. W. Co. v. Buck, 116 Ind. 566.
It is next urged that the court erred in refusing instructions requested by the appellant. The second instruction was refused. It is an instruction to the effect that there was a failure of proof to show that the engineer was unskilful, incompetent and negligent, and that the appellant had knowledge of his unfitness a sufficient length of time prior to the accident to have provided against it, and therefore the jury should find for the appellant. This instruction was properly refused under the averments of the complaint. The appellee might have recovered by reason of the defects in the engine. The third was an instruction to find for the appellant for the reason that there was no testimony showing the engineer incompetent. This was also properly refused. The seventh instruction, that, the appellee could not recover by reason of the fact that he was trying to make the coupling without the use of a safety coupler, when the rules of the company required him to use one, was properly refused, there being no evidence that the injury was caused or contributed to on account of a failure to use a safety coupler. It is not alleged that the injury occurred while having his hands engaged in making the coupling, but the car struck him, causing him to throw his hand between the deadwoods. His hand was not between the deadwoods when injured by reason of attempting to make a
The appellant insists that instruction eighteen, requested by it, ought to have been given. This instruction states, as a matter of law, what the duties of the yardmaster, in which appellee was acting, are, and that his position is more favorable than that of the master to know the fitness of the engine and engineer. The instruction was erroneous, and the court did right in refusing to give it to the jury. The court also refused to give instruction twenty-five. This instruction told the jury that if appellee had worked a certain number of days as yardmaster with the engine claimed to be defective, and coupled and uncoupled cars during that time, and saw others do so, and did not object to continuing work, that in such event they were told, as a matter of law, that the appellee had reasonable opportunities, by the exercise of ordinary care, to have known whether the engineer was competent or the engine fit for the work, and by his continuing to work without protest or objection he assumed the risk of injury by reason of the unfitness of either engineer or of the engine, and the defendant is not liable in this action.
This instruction was erroneous. It took from the jury the right to pass upon the opportunities the appellee had to ascertain the fitness of the .engine, and was saying, as a matter of law, what time the appellee would have to work with the engine to be conclusively presumed to have known of any defects existing in the engine. It was for the jury to say whether or not the appellee had such opportunities to judge of the sufficiency of the engine as to be conclusively presumed to have such knowledge and assume the risk. There was no error in refusing this instruction.
Appellant moved the court for judgment in its favor on the answers to interrogatories, which motion was overruled.
There were a large number of interrogatories submitted
Appellant moved in arrest of judgment. This presents a question as to the sufficiency of the complaint. We deem it unnecessary to discuss at any further length the sufficiency of the complaint. The complaint is clearly good to withstand a motion in arrest, indeed we regard it sufficient on demurrer. We have not set it out in full, as no good would be accomplished by doing so.
The next question arises on the motion for a new trial, and relates to the sufficiency of the evidence to sustain the verdict. No good can be accomplished by setting out and discussing th,e sufficiency of the evidence. We can n,ot weigh the evidence. It is sufficient if there is evidence from which the jury may have reasonably found as they did, and we think the evidence in this case fairly supports the verdict. The injury is clearly shown, and that the engine was defective and known to be defective by the appellant and neglect to repair is shown, and from which the jury may have found that the injury was the result of the defective engine, and that the appellee had no knowledge of the defective engine, and that he was without fault contributing to the injury.
When the appellee was testifying as a witness in his own behalf he was asked : “Was it any part of your duty to superintend or look after the fitness or qualifications of the engineer?” And a like question was asked regarding the engine, to which the appellant objected, and the objection was overruled and exceptions reserved. These questions
A witness was asked concerning other defects than the defect in the throttle valve, and it is insisted that this was error, for the reason that no other defect was specifically alleged, and that appellant moved to make the complaint more specific in this respect, that the appellant was in court to meet the charge of a defective throttle valve. The complaint avers that there were other defects in the engine of which appellant had knowledge, but which defects were unknown to appellee. The defects being unknown to appellee, he could not specifically name and describe them, but the averments in the complaint entitled him to make proot of other defects if any existed. If he were injured by reason of defects unknown to him and known to the appellant, he could not be prevented from recovering on account of his want of knowledge and inability to specify and describe such defects.
Appellant then moved to strike out all evidence relating to any defects except the throttle valve, which was overruled. What we have said disposes of this question. The ruling was correct.
Appellant asked an engineer, who was testifying as a witness, “ If the engine and engineer worked so as to be satisfactory to the yardmaster, is there any occasion for complaint ? ” and he answered, “ No, sir.”
The appellee moved to strike out tlie answer, and the court sustained the motion, and this ruling is assailed as error. This ruling was clearly right. The question and answer had no possible relevancy or bearing on the issues in the case.
A similar question was propounded to another witness, and the court held it incompetent. Another witness was asked which was the safer engine to use, a road engine or a switch engine, and the court held it incompetent. A comparison
Some objections are made to the ruling of the court on questions propounded to appellee when testifying as a witness. We have examined them, and there is no error in the ruling.
There is no available error in the record.
Judgment affirmed, with costs.
McBride, J., took no part in this decision.
Rehearing
On Petition for a Rehearing.
— In the brief of appellant’s counsel on the petition for a rehearing, it is argued with ability and earnestness that this court erred in not reversing the judgment because of the error of the trial court in instructing the jury as to the degree of care required of an employer in providing his employees with safe appliances.
We fully agree with counsel that an employer is not bound to exercise extraordinary care to provide safe appliances. The care required of him is ordinary care, but the dangers of the service of which the employer has knowledge, or of which he is bound to take notice, are always to be considered in determining what constitutes ordinary care. There is no exact test to which cases can be indiscriminately subjected, nor is there any rigid standard by which all cases can be measured. What would be ordinary care in one class of cases might be far otherwise in other and different classes.
The fourteenth instruction, against which the attack is particularly directed, contains some statements which can
An analysis of this instruction shows that it contains general statements that are unquestionably correct, and these statements give tone and effect to the specific instruction when considered, as it must be, in connection with the series of instructions of which it forms a part. It is true, in a general sense, that a duty rests upon the employer "to see whether there are latent defects” in the appliances with which he requires the employee to make use of in the line of his service. The employer is bound to make reasonable inspection of the appliances furnished the employees to discover latent defects, and a neglect to make such an inspection is a culpable breach of duty. Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642; Matchett v. Cincinnati, etc., R.
If an employee knows, or should know by the exercise of ordinary care, of defects adding to the perils of his service, he can not, as a general rule, recover for injuries attributable to such defects, hence it is correctly held that he must aver that the defects were unknown to him. Lake Shore, etc., R. W. Co. v. Stupak, 108 Ind. 1; Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75; Louisville, etc., R. W. Co. v. Sandford, 117 Ind. 265; Brazil, etc., Coal Co. v. Young, 117 Ind. 520; Louisville, etc., R. W. Co. v. Corps, 124 Ind. 427; Matchett v. Cincinnati, etc., R. W. Co., supra; Philadelphia, etc., R. R. Co. v. Hughes, 119 Pa. St. 301; Wilson v. Winona, etc.,
But where the defect is hidden, this established rule can not fully apply, for the fact that such defects are hidden, when properly proved, may negative the inference that the employee knew of their existence, or was chargeable with such knowledge. As it was latent defects only to which the court referred in the instruction, it is not incorrect in itself upon the point to which we here are directly addressing our discussion. The jury could not have understood that the court referred to any ot-her than latent defects, and it can not be justly said that they were misled upon this point.
It is undoubtedly true that an employee may, within reasonable limits, act upon the presumption that the employer has discharged his duty by exercising reasonable care to supply appliances free from such latent defects as augment the perils of the service. Pennsylvania Co. v. Whitcomb, 111 Ind. 212 (219); Hard v. Vermont, etc., R. R. Co., 32 Vt. 473.
The general rule is that negligence or breach of duty is not presumed, and this rule must benefit the employee as well as the employer. It can not be a sword to the one and a. shield to the other. But the rule to which we have referred does not authorize an employee to act without care. He must, notwithstanding the presumption, use reasonable care, but reasonable care, as we have seen, does not cast upon him the duty of making an inspection to discover latent defects. It is evident from what we have said that the instruction is Dot erroneous, because it states that the presumption is that the employer’s duty was performed. It is probably true that the language employed is too broad, and that it should, in order to express the law with accuracy, have been limited by incorporating into the instruction appropriate words expressing the rule that ordinary care is required of the employee. But the instruction is to be construed as part of the entire series, and when thus construed we can not say that there is.
Counsel say that “ It is true, that the court below in some places gave some substantially correct instructions,” but they contend that the other instructions in the case necessarily misled the jury because of repeated erroneous statements. They also say that the giving of an erroneous instruction is not cured by giving a contradictory one, unless the erroneous instruction is withdrawn, and they refer us to Elliott’s Appellate Procedure, section 705. We recognize the general rule stated by counsel, but we must also keep in mind and justly regard another rule, and that is this, instructions are to be construed as an entirety. See authorities cited in Elliott’s Appellate Procedure, section 648. Applying the rule last mentioned, and keeping in view the general statements in the instructions to which objections are urged, and the specific statements in other instructions, we feel bound to adhere to our original opinion.
We do not deem it proper to here discuss other questions, for we think the disposition made of them in the original opinion is the correct one.
Petition overruled.