Vandalia Railroad v. Stringer , 182 Ind. 676 ( 1914 )

Erwin, J.

This action was brought by appellee against appellant on a complaint in one paragraph. Demurrer of appellant to this complaint was overruled. An answer in general denial put the ease at issue. Trial by jury which resulted in the return of a verdict for appellee in the sum of $16,500. A motion for a new trial on the part of appellant was overruled, and judgment entered on the verdict. Prom this judgment appellant appeals to this court. The assignments of error not waived present the questions, (1) overruling the demurrer to the complaint, (2) overruling the motion for a new trial.

The complaint in this case avers that the appellant was a railroad corporation, engaged in interstate commerce and alleges that he, appellee, was injured by reason of the carelessness and negligence of the engineer in allowing the water to become low on the crown-sheet of the locomotive, and then suddenly injecting water into the boiler of said locomotive and causing a sudden and extreme amount of steam to be generated, thus causing the crown-sheet to drop into the fire box and thus caused a loud report and noise, which led appellee to believe he was in danger of great bodily harm, and acting on that belief jumped from the window of said cab and was severely injured; that appellee was a brakeman on appellant’s train and that it was his duty, and that he was directed to ride in the cab of said engine, while running.

To this complaint appellant demurred for the reason "that said complaint does not state facts sufficient to constitute a cause of action”. The memorandum with said demurrer is to the effect, (1) the complaint does not state a cause of action at common law, because at common law the engineer was a fellow servant of the plaintiff and the defendant is not liable for his negligence, (2) the complaint does not state a cause of action under any statute. In order to state a cause of action based upon a right of action created by statute, the provisions of the statute must be set forth or specific reference made thereto, together with the averment that the plaintiff seeks to recover by virtue of the provisions of such statute, (3) the facts alleged in the complaint show that the plaintiff, by his own negligence materially contributed to his injury.

1.

On the question of the sufficiency of the complaint it is contended that the complaint is bad and that the court committed error in overruling the demurrer thereto because the facts alleged show that the plaintiff’s own negligence was the proximate cause of the injury. The complaint avers that as he was riding in the engine cab, defendant’s engineer on said locomotive engine, defendant’s agent and servant who was running and operating said locomotive, negligently permitted the water to get and become low in the boiler of said engine; that said engineer negligently permitted the water to get so low that the crown-sheet in said engine above the fire box in said engine, became dry and wholly uncovered with water; that said crown-sheet became extremely hot by reason of its exposure to the heat in said fire box, and while in said heated condition defendant’s said engineer turned the water into said boiler and upon said crown-sheet, and that on account of said crown-sheet being heated to such excessive heat the water was instantly converted into steam and thereby caused the crown-sheet to become loosened and drop from its position in said engine, causing a great noise and explosion. And plaintiff says that he believed that said boiler was about to explode, or had exploded, and that he leaped from the window of said cab of said engine in order to save his life; that the said engineer and also the fireman upon said engine leaped from said locomotive at the same time, believing as did this plaintiff that said locomotive had exploded, or was about to explode; and plaintiff says that when he leaped from said cab window as aforesaid, it was in the nighttime and dark, and that said train was running upon defendant’s track at said time, and near the town of Farmers, upon the Vincennes division of defendant’s said line of railroad; and that said locomotive was running about fifty miles an hour, when he leaped from said cab window, as aforesaid. And plaintiff says that he was injured and caused to be injured as aforesaid by reason of the said negligence of said engineer in permitting the water to become too low in said locomotive boiler and thereby exposing said crown-sheet to .great heat and by negligently turning the water into said boiler and upon said crown-sheet while said crown-sheet was in said highly heated condition, and thereby causing said boilsr to explode and blow down the crown-sheet of said locomotive, and thereby frighten this plaintiff and caused him, as aforesaid to believe that said locomotive had exploded, or was about to explode, and thereby leap from said locomotive to save his life. The averments of the complaint state a cause of action either under the statutes of this State (subd. 4, §8017 Burns 1914, Acts 1893 p. 294); Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 78 N. E. 1033, or under the Federal Employers Liability Act (Act April 22, 1908, c. 149, §8657 U. S. Comp. Stat. 1913).

2.

3.

Where the complaint states a cause of action, under any statute it will be good as against a demurrer, for want of facts. Southern R. Co. v. Howerton (1914), ante 208, 105 N. E. 1025, 106 N. E. 369; Southern R. Co. v. Ansley (1910), 8 Ga. App. 325, 330, 68 S. E. 1086. It is settled by the decisions of the Supreme Court of the United States that where employes of an interstate railroad are injured while engaged in such interstate commerce that the Employers Liability Act of April 22, 1908, supersedes State laws upon the subject and controls the recovery. Missouri, etc., R. Co. v. Wulf (1913), 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914 B 134. It is also well settled by the authorities that where an employe of an interstate railroad is injured, but at a time when said employe was not engaged in interstate traffic a recovery may be had, if at all either under the common law or some state statute. Therefore in stating that the action must be brought and recovery had under , the state law where the injury occurs in intrastate commerce, or under the Federal act where the injury occurs in interstate commerce, it is not meant to say that the plaintiff shall specifically plead or refer to the state statutes in the one case or to the Federal act in the other. The proper procedure is to plead the facts, and a recovery may then be had accordingly as the evidence may develop a case under the one law or the other. Missouri, etc., R. Co. v. Wulf, supra; Ulrich v. New York, etc., R. Co. (1912), 193 Fed. 768; Jones v. Chesapeake, etc., R. Co. (1912), 149 Ky. 566, 149 S. W. 951, 953; Southern R. Co. v. Ansley, supra; St. Louis, etc., R. Co. v. Searle (1913), 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914 C 156; Southern R. Co. v. Howerton, supra; Wabash R. Co. v. Hayes (1914), 234 U. S. 86, 34 Sup. Ct. 729, 58 L. Ed. 1226.

4.

Appellant insists that the court erred in refusing to give certain instructions tendered by it. The instructions tendered and refused each confined the right to recover to the provisions of the Federal Liability Act. The facts in this case do not bring this case within the provisions of that act; in fact there is no evidence which would authorize a recovery 'under that act, but all the facts show that this cause is governed by the provisions of the employers act approved March 4, 1893, §8017 Burns 1914, supra. It appears from the record that all the parties to the action so treated it. The court in its instructions treated this cause as one governed by the State employers law, supra; instruction No. 15 being as follows: "If you find from the evidence, that the plaintiff was placed in a position of sudden and great peril, by reason of the alleged negligence of the defendant’s engineer, in charge of the locomotive engine as charged in the complaint, [our italics] and that the plaintiff in attempting to make his escape therefrom, acted as a person of ordinary prudence would have acted under the same or similar circumstances then present, you would be at liberty to find the plaintiff free from negligence, although you also find from the evidence that if he had not attempted to effect his escape, he would not have been injured. ’ ’

5.

6.

Appellant complains of instruction No. 6 given by the court, because it claims that in effect it told the jury that if defendant failed in the performance of any duty it owed the plaintiff, it would be liable, without limiting such duty to the duty alleged in the complaint, or arising ont of the facts alleged in the complaint; or that an imperfect performance of any duty would render it liable, whether alleged as the basis of the action or not. To properly understand instruction No. 6 it should be read in connection with instruction No. 5 given in this cause. Instructions Nos. 5 and 6 are as follows: “5. In an action to recover damages for injuries to the person on account of alleged negligence of another, it is essential for the plaintiff in such action to allege and prove by a fair preponderance of the evidence each of the following propositions: (1) That the plaintiff sustained the injuries or some part thereof, to his damage, as charged in the complaint. (2) That the defendant’s engineer in such action was guilty of the negligence charged, and that such negligence was the direct and proximate cause of the injuries alleged. (3) That the plaintiff sustained the damage charged in the complaint, by reason and as a direct and proximate cause of the injuries alleged. 6. And also in such an action it is essential for the plaintiff therein to allege, and by a fair preponderance of the evidence prove, each of the following propositions, (1) A duty owing by the defendant in such action, to the plaintiff therein, or facts and circumstances from which such duty can properly be inferred. (2) A failure in the performance, or an imperfect performance of any such duty on the part of the defendant. (3) That any such failure of performance,, or imperfect performance, of any such duty, was the direct and proximate cause of the injury alleged.’'’ We are of the opinion that instruction No. 6 is not open to the infirmities claimed by appellant. Instructions should be considered as a whole, and when so taken clearly state the law, there can be no error predicated upon the giving of an instruction, which, standing alone, might seem to be erroneous. Springer v. Bricker (1905), 165 Ind. 532, 76 N. E. 114; American Car, etc., Co. v. Adams (1912), 178 Ind. 607, 99 N. E. 993; Terre Haute, etc., Traction Co. v. Maberry (1913), 52 Ind. App. 114, 100 N. E. 401.

7.

It is contended by appellant that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, (1) on the grounds that it fails to show that appellant and appellee, at the time of the injury, were engaged in interstate commerce; (2) that the evidence shows that the plaintiff’s negligence was the proximate cause of the injury. It is insisted that this action was brought and prosecuted to final determination under the Federal statute. If this were true the evidence would be insufficient. But it is contended by appellee and rightly we think, that this action was tried wholly under the statute of this State, wffiich is only superseded by the Federal act, when dealing with interstate commerce. The facts in this case sustain the complaint and there being no reversible error the judgment is affirmed.