Chicago & Eastern Illinois Railroad v. Beatty , 13 Ind. App. 604 ( 1895 )

Davis, J.

This action was brought by the appellee as administrator of the estate of Jasper Robinson, deceased, against the appellant, to recover damages for the death of his intestate, caused by the alleged negliligence of the appellant. A trial was had by a jury, which resulted in a verdict and a judgment in favor of appellee for 83,000.00.

The following errors are assigned in this court:

1. That the court erred in overruling appellant’s demurrer to the complaint.

2. That the court erred in overruling appellant’s motion for a new trial.

3. That the complaint does not state facts sufficient to constitute a cause of action.

The complaint alleges, in substance, that the appellant was, on December 26, 1892, operating a line of railroad from Brazil, Indiana, to Chicago, Illinois; that appellee’s intestate, one Jasper Robinson, was employed in and about appellant’s round-house, located at Brazil, his duties being to assist in cleaning and wiping locomotives placed in the round-house. That appellant’s locomotives were transported to and from the round-house, over a track leading from main line into the round-house, and when the engines were cleaned, repaired, and ready for use, they were run over the same track back to the main line. The entrance into the round-house through which the locomotives passed was only of sufficient width to admit of such passage. On either side of this entrance wooden posts were placed, to which doors were hung to close up the entrance after a locomotive had passed through.

It is further alleged that on the morning of December 26, 1892, a locomotive was brought out of this round-house, in charge of one Aaron Eunyan, to be taken over the side-track to the main track, and there to be delivered to the regular engineer. It is also alleged that said Eunyan ran the locomotive out of the roundhouse a short distance, and while appellee’s intestate, Eobinson, was closing the door to the entrance through which the locomotive had just come, as it was a part of his duty to do, said Eunyan “negligently, carelessly, and suddenly started and ran said locomotive back towards and into said entrance, and over, against and upon the said plaintiff’s (appellee’s) intestate, bruising, wounding, and injuring him in such manner that he died in a few moments thereafter from said injuries.”

It is also alleged that Eobinson had no notice of Eunyan’s intention to run the engine back into the roundhouse, but supposed it was to proceed on its way to the main line; that no notice was given him, by ringing bell, blowing whistle, or otherwise, that said engine was about to return to the house; that it was not yet daylight, and there was no light on the end of the tender of the locomotive, so as to enable Eobinson to see the approach of the engine; and that he was injured and killed in the manner aforesaid, without any fault on his part.

It is further alleged that Eobinson was “injured in the manner aforesaid by reason of the negligence and the carelessness of said defendant (the appellant) in this: That said defendant suffered and permitted said Eunyan, who was not a locomotive engineer, to have charge of, manage, control and operate said locomotive; that said Eunyan being incompetent to run and operate said locomotive, which said defendant knew, or might and ought to have known. ”

It is further averred that Robinson had been in the employment of said defendant but a short time prior to his death, and had no knowledge of Runyan’s incompetency to run said locomotive; and that the intestate left a. widow, and an unborn child, now living, who were dependent on the deceased for support. Wherefore damages are demanded, etc., etc.

Counsel for appellant contend that the complaint is insufficient, for the reason that it is not alleged in specific terms wherein and why Runyan was incompetent. It is alleged that Runyan was not a locomotive engineer, and that he was incompetent to run and operate said locomotive. The demurrer admits he was incompetent. Therefore he was unfit and unable to do properly what was required of him. (See Webster’s, and also Standard, Dictionary.) The allegation that Runyan was not a locomotive engineer, and that he was incompetent, is equivalent to the charge that he was unfit and unable to do properly what was required of him to run and operate said locomotive, and is sufficient on this question to withstand the demurrer.

It is next insisted that the negligent act Runyan did, which caused the injury, is not shown to have been the result of the fact that he was incompetent to run and operate said locomotive. The wording of the complaint in this respect could be improved, but when all the allegations are construed together it appears that said Robinson was injured by reason of the fact that Runyan, who was not a locomotive engineer, and who was incompetent to run and operate the locomotive, was in charge of said locomotive. It clearly appears that the negligence of an incompetent employe was the proximate cause of the injury. Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261, 268; Lake Shore, etc., R. W. Co. v. Stupak, 123 Ind. 210, 222.

In Indianapolis, etc., R. W. Co. v. Johnson, 102 Ind. 354, Judge Elliott states the rule as follows: ‘ ‘ It is well settled that a master, who negligently employs, or who wrongfully retains in his employment, incompetent servants, is responsible to a servant injured by the negligence of the incompetent fellow-servant. ”

In the light of the authorities cited the complaint, in our opinion, is sufficient.

Counsel for appellant next urge that the verdict of the jury is not sustained by sufficient evidence; that it is contrary to the evidence, and that it is contrary to law.

It is first insisted that there is no evidence in the record fairly tending to prove that, the deceased died prior to the commencement of the suit, or that his death was caused by injuries received in the accident referred to.

The evidence shows that Robinson commenced working at appellant’s round-house in September, 1892, and that the accident happened on the 26th of December, 1892; that he was injured about the middle part of the body, as shown by the blood; that he did not speak and could not walk; that they carried him away; that he suffered a great deal; that he had been working there four months before he was killed. Counsel for appellant, in one question at least, assumed that he was killed. The facts and circumstances in relation to the manner in which, he was injured were sufficient to authorize the inference by the jury that he died as the result of his injuries.

It is also insisted that there is no evidence to support the allegation that he was injured by the engine.

Robinson was employed as a wiper. One of the duties of a wiper was to close the doors of the roundhouse as soon as the engine going out was clear of the doors, in order to exclude the cold, so that the water in the other engines standing in the round-house would not freeze; that this was a cold morning, and when this engine, in charge of Runyan, passed out Robinson proceeded in the line of his duty to close the double heavy doors; that when the engine had gone from four to six feet Runyan reversed it to return into the round-house for the purpose of lighting the headlight; that as this was done Robinson was seen on the track at the doors right in front of the engine, and as a co-employe hallooed to Runyan to stop the engine Robinson was seen to fall across the tracks. Whether he was crushed between the engine and doors is not clear,' but the inference is reasonable that he was injured by the engine.

It is also insisted that there is no evidence supporting the allegation that the deceased had no notice that the engine was to be moved forward toward the roundhouse. There is no direct evidence on this subject. Runyan testified that before he reversed the engine and changed its motion he put his head out of the cab window and hallooed “Look out.” Whether the deceased heard this warning, conceding it was given, we do not know. This was about five o’clock in the morning. It was not yet daylight. The deceased had his lantern. Runyan was running the engine back to light the headlight. Robinson had unfastened one of the doors and had it swung around to within eight or ten inches of the track. Runyan also testified that he did not know that Robinson or any one else was closing the doors or was in front of the engine. He says that he did not blow any whistle or ring any bell, and he does not say how loud he spoke when he said “Look out.” In the light of all the circumstances shown by the evidence, we cannot say that the jury were not authorized in drawing the inference that the deceased had no notice that the engine was to be moved forward toward him. ■

It is next contended that there is no evidence in the record showing that Rnnyan was incompetent, or that the accident occurred on account of his incompentency, or that appellant knew he was incompetent, or that if he was incompetent, Robinson did not know it.

It may be conceded, as stated by counsel for appellant, that so far as the employment of Runyan is concerned, £ £ all that is required, is that reasonable care should be used in selecting a man for that work. ”

' There is evidence in the record tending to prove that Runyan and Robinson were both employed as wipers, and that their duties were to clean the. engines, open and close the doors of the round-house, turn the turntable, take water and coal, and give the engines sand; that Osborne, the night hostler, had control of the roundhouse, and that the wipers were under his command, and that it was their duty to obey his directions; that Runyan had some experience as a brake'man, and also as a wiper, and had previously, in other places, for a short time, acted as’a hostler in running engines on switches and to and from the round-house, but had never had any experience as a fireman, or as an engineer, except as herein indicated; that Runyan and Robinson worked in the round-house together, from the 9th to the 26th of December, and that during the week preceding the accident, under the direction of the hostler, Runyan at times acted as hostler, in moving and handling trains from the round-house to the main track. The appellee introduced evidence tending to prove that in order to qualify a man to handle engines, in taking them back and forth from the round-house, he should have good judgment, and also two years experience as a fireman, under the direction and supervision of a competent engineer. The evidence, when construed in the most favorable light for appellee, tends to prove that Runyan was not competent for the work in which he was engaged at the time of the accident; that appellant had not exercised reasonable care in selecting him to do that work, and that the injury resulted through his incompetency

The fact, if essential that it should be proven by appellee, that Robinson did not know that Runyan was incompetent can only be determined by inference. Robinson had the right to presume that the appellant would entrust the handling of their engines to none but competent persons and would not increase the perils and dangers of his employment by placing inexperienced and incompetent persons, without notice to him, in charge of its locomotives. It was not his duty, unless there was something to put him on inquiry as to Runyan’s fitness, to institute any inquiry as to his qualifications. Pennsylvania Co. v. Roney, Admx., 89 Ind. 453. If he knew, or by the exercise of reasonable care might have known, of the incompetency of Runyan, and if with such knowledge or means of knowledge he remained in appellant’s service, he would be regarded as having assumed all the risks incident to the negligence of such incompetent co-employe, unless a reasonable excuse for remaining in the service was shown. Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 15; Lake Shore, etc., R. W. Co. v. Stupak, 108 Ind. 1, (5); Chicago, etc., R. W. Co. v. Champion, 9 Ind. App. 510.

Among other instructions the court, at the request of the appellant, gave the following :

“If Robinson, the deceased, knew that Runyan was incompetent to act as an engineer, or if he had equal opportunities with the defendant to know of his incompetency and he voluntarily continued in the service of the defendant without complaint or objection, then I instriict you that the dangers arising from the incompetency of Runyan were risks assumed by Robinson, and if he was injured and killed by said Runyan’s incompetency to manage and operate a locomotive, the plaintiff cannot recover in this action.”

Under the facts and circumstances disclosed by the evidence in the record, when construed most favorably in behalf of appellee, as under the rule is required in. this court, we cannot say, in the light of the instruction and the verdict of the jury, that Robinson knew, or by the exercise of ordinary care should have known, that Runyan was incompetent to manage and operate the engine.

It does not appear that Robinson had any knowledge or information putting him on inquiry as to the competency or incompetency of Runyan. Pennsylvania Co. v. Roney, Admx., supra. In the absence of knowledge or information on the subject Robinson had the right to assume when Runyan was selected to manage and operate the engine that he was competent to perform that service.

Runyan testified that for a week or two prior to the accident he was under the direction of the hostler, acting as an assistant hostler; that the principal part of his time was taken up in the performance of the duties of a hostler, but that he wiped engines when he had time.

Whether the act of Osborne in assigning Runyan to perform the duties of a hostler was within the scope of his authority, is not questioned. G-ranting that the act of Osborne was the act of the company, the conduct of Runyan on this occasion, with the circumstances surrounding it, were sufficient to warrant the jury in the inference that there was want of ordinary care in selecting him to manage and operate the engine. Evans-

Filed May 3, 1895; petition for rehearing overruled November 26, 1895.

ville, etc., R. R. Co. v. Guyton, 115 Ind. 450, 454; Pennsylvania Co. v. Roney, Admx., supra. As we have seen, the facts and circumstances are not such as would warrant this court, in the face of the verdict of the jury, in saying that Robinson was bound to take notice of Runyan’s incompetency. Although the evidence on this question, as on some others in the case, is neither clear nor satisfactory, we would not be justified in disturbing the verdict on this ground.

When all the instructions are considered and construed together as an entirety, they correctly state the law applicable to the case. We have considered all the questions discussed by counsel for appellant.

There is no error in the record, so far as discussed by counsel.

Judgment affirmed.