American Rolling Mill Co. v. Hullinger

Gillett, J.

— Suit for personal injury, instituted by appellee against appellant. The complaint of the former .seeks to charge appellant with negligence because of the omission of its master mechanic, and the first question is whether it appears from the complaint that said master mechanic was not a co-servant, but was a person for whose acts the appellant was responsible. It is charged in said pleading not only that said master mechanic had full charge of the work at which appellee was engaged at the time of his injury, but that he had been “intrusted by said defendant with the duty of keeping the ways, works, plant, tools, and machinery connected with and in use in the business of said defendant corporation in proper condition.” The complaint shows that the master mechanic was a vice-principal, and in that particular, at least, facts are stated on which a common law liability may be based. Southern Ind. R. Co. v. Martin, 160 Ind. 280.

The further question that is presented concerning the complaint is whether it should state facts showing that appellee had not assumed the risk, which in this case arose from leaving a bent or truss leaning against a gin pole without being held in position by guy-ropes or other means of support. It is admitted by counsel for appellee that this showing would have been necessary, according to the course of decision in this State, in stating a liability for negligence between master and servant not resting upon any statute. Louisville, etc., R. Co. v. Sandford, 117 Ind. 265; Indiana, etc., Oil Co. v. O'Brien, 160 Ind. 266, and cases there cited.

At the basis of every well-grounded action for negligence must lie a legal duty to use care. Brooks v. Pittsburgh, etc., R. Co., 158 Ind. 62. Otherwise stated, a complaint for negligence should exhibit a duty owing. Black, Law & Prac. in Accident Cas., §150. Notwithstanding the duties the master owes the servant, yet, at common law, if it appears that the latter had assumed the risk, *675 there is no liability for negligence. This is but an application of the maxim, volenti non fit injuria, which states a principle of very broad application in the law. The master may not have performed the duty required of him, but if the servant knows that such duty has not been performed, and appreciates the extent of the risk that he thereby runs, or should have known and appreciated the same, he ordinarily assumes the risk, and this absolves the master from liability for the resulting injury. Indiana, etc., Oil Co. v. O’Brien, supra; Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N. E. 464, 31 Am. St. 537; Miner v. Connecticut River R. Co., 153 Mass. 398, 26 N. E. 994; Sullivan v. India Mfg. Co., 113 Mass. 396; Mundle v. Hill Mfg. Co., 86 Me. 400, 30 Atl. 16.

As said in Fitzgerald v. Connecticut River Paper Co., supra: “It is well settled that a servant assumes the obvious risks of the service into which he enters, even if the business be ever so dangerous, and if it might easily be conducted more safely by the employer. This is implied in his voluntary undertaking, and it comes within a principle which has a much broader general application, and which is expressed in the maxim volenti non fit injuria. The reason on which it is founded is, that, whatever may be the master’s general duty to conduct his business safely in reference to persons who may be affected by it, he owes no legal duty in that respect to one who contracts to work in the business as it is.”

Appellee’s counsel contends that a cause of action is stated under the first section of the act of March 4, 1893 (Acts 1893, p. 294), known as the employers’ liability act. Counsel for appellant sqek to meet this contention by the claim that said section is unconstitutional as applied to corporations other than railroad, and by the further claim that the common law doctrine of assumed risk is to be read into said statute, thereby making such doctrine a part of *676 the statute. It is thoroughly settled, that this court will not determine a constitutional question if it can perceive another ground on which it may properly rest its decision, and therefore we first inquire whether the second contention of appellant’s counsel is well founded. Section 1 of said act (§7083 Burns 1901) is as follows (omitting the enacting clause): “That every railroad or other corporation, except municipal, operating in this State, shall be ‘liable in damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: First. When such injury is suffered by reason of any defect in the condition of ways, works, plant, tools and machinery .connected with or in use in the business óf such corporation, when such defect was the result of negligence on the part of the corporation, or some person entrusted by it with the duty of keeping such way, works, plant, tools or machinery in proper condition. Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform. Third. Where such injury resulted from the act or omission of any person done or made in obedience to any rule, regulation or by-law of such corporation, or in obedience to the particular instructions given by any person delegated with the authority of the corporation in that behalf. Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, roundhouse, locomotive engine, or train upon a railway, or where such injury was caused by the negligence of any person, co-employe or fellow servant engaged in the same common service in any of the several departments of the service of any such corporation, the said person, co-employe or fellow servant, at the time acting in the place, and performing the duty of *677 the corporation in that behalf,.and the person so injured, obeying or conforming to the-order of some superior at the time of such injury, having authority to direct; but nothing herein shall be construed to abridge the liability of the corporation under existing laws.” Although §2 of said act was repealed in 1895 (Acts 1895, p. 148), yet it may be considered as evincing that it was not the intent of the legislature to create a liability as unrestricted as §1 might seem to imply. Said §2 is as follows: “Neither an employe nor his legal representative shall be entitled under this act, to any right of compensation or remedy against the corporation in any case where the injury results from obedience to any order which subjects the employe to palpable danger, nor where the injury was caused by the incompetency of the co-employe and such incompetency was known to the employe injured; or such injured employe, in the exercise of reasonable care might have discovered such incompetency; unless the employe so injured gave or caused to be given information thereof to the corporation or to some superior entrusted with the general superintendence of such co-employe, and such corporation failed or refused to discharge such incompetent employe within a reasonable time, or failed or refused within a reasonable time, to investigate the alleged incompetency of the co-employe or superior, and discharge him if found incompetent.”

The English act (Chap. 42, of 43 and 44 Victoria), on which nearly all of the employers’ liability acts of this country are founded, resembles the first section of the Indiana act in the subdivisions; but, instead of providing for a liability in its opening language, the former act provides, after the enumeration of the subdivisions, a remedy to the employe to the same extent “as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work.” It was held in Thomas v. Quartermaine, L. R. 18 Q. B. D. 685, which involved a defect in a master’s premises, that the act had not placed the servant *678 in any better position than would have been occupied by a stranger who came upon the master’s premises at his invitation. Other cases that are based on similar statutes are to the same effect, and some of- such cases involve clauses of the statute that provide for liabilities that did not exist at the common law. O’Maley v. South Boston Gaslight Co., 158 Mass. 135, 32 N. E. 1119, 47 L. R. A. 161; Gleason v. New York, etc., R. Co., 159 Mass. 68, 34 N. E. 79; Cassady v. Boston, etc., R. Co., 164 Mass. 168, 41 N. E. 129; Birmingham R., etc., Co. v. Allen, 99 Ala. 359, 13 South. 8, 20 L. R. A. 457. This quite clearly appears to be the correct doctrine under statutes like the English statute, for such statutes but put the servant on a footing with strangers-, against whom the principle embodied in the maxim may operate. This would probably have been the effect of §1 of the Indiana statute had it stood alone. The first, second, and fourth subdivisions, at least, create liabilities based on negligence, thereby remitting the courts to the common law for a definition of negligence; and, as stated above, there can be no negligence without a duty. Besides, there must be some restriction put upon the broad language of §1, or it is conceivable that a case might arise where there would be a liability for the act of a servant more extensive than would have existed had the master been a natural person, and been guilty of the same act or omission as the offending servant.

While the act is remedial, and, to the extent that the legislative purpose can be divined, is not to be construed in a spirit of narrowness, yet, to the extent that the legislative purpose is not expressed, we must follow the rule and reason of the common law. As said by Mr. Sutherland: “Statutes are but a small part of our jurisprudence. The principles of the common law pervade and permeate everything which is subject to legal regulation. Such law defines rights and wrongs of every description and the remedies for public and private redress. By its principles stat *679 utes are read and construed. They supplement or change it,' and it adjusts itself to the modification and operates in conjunction and harmony with fhem. If words from its vocabulary are employed in them it expounds them. If the statutes are in derogation of it, it yields and bides its time; if they are cumulative, it still continues. Rules of interpretation and construction are derived from the common law, and since that law constitutes the foundation and primarily the body and soul of our 'jurisprudence, every statutory enactment is construed by its light and with reference to its cognate principles.” Sutherland, Stat. Const., §289. See Gibbs v. Great Western R. Co., L. R. 12 Q. B. D. 208; Ryalls v. Mechanics Mills, 150 Mass. 190, 22 N. E. 766, 5 L. R. A. 667; Mobile, etc., R. Co. v. Holborn, 84 Ala. 133, 4 South. 146; Hodges v. Standard Wheel Co., 152 Ind. 680; Dresser, Employers’ Liability, §3.

. In construing the act in question, it has been said in some of our cases that it was intended to put certain servants under certain circumstances into the vice-principal class. Baltimore, etc., R. Co. v. Little, 149 Ind. 167; Thacker v. Chicago, etc., R. Co., 159 Ind. 82. In Pittsburgh, etc., R. Co. v. Moore, 152 Ind. 345, 44 L. R. A. 638, it was distinctly held that the doctrine of assumed risk was applicable to cases arising under the fourth subdivision of the statute; and in Whitcomb v. Standard Oil Co., 153 Ind. 513, this rule was adhered to in a case that brought under review subdivisions one and two of the statute. In the case last cited it was said: “We know of no warrant for tin's court to accept the intention of the Assembly of 1895 as controlling the construction of a statute passed by the Assembly of 1893, especially where we are required to determine that intention by implication, and we must, therefore, confine ourselves to approved rales of construction and look rather to the intent of the legislature that gave the statute origin, if there is anything obscure in its provisions. But there is nothing obscure in the provisions *680 before us, and nothing in them to justify the contention that the employe is thereby relieved from that caution and care of himself required by the common law. There are no express words to authorize such construction, and a principle of the common law so long established and universally approved can not be subverted by implication. The construction contended for would constitute a railroad company the absolute insurer of the safety of its employes against the ordinary and usual perils incident to the unexpected and excusable impairment of its ways, works, etc.; and thus to invest the employe with the sense of indemnity would in large measure strike down that salutary principle of public policy which requires every one in every situation to be alert in the preservation of life and limb.”

We have no hesitation .'in asserting that the doctrine of assumed risk is involved in cases arising under the statute. With the repeal of §2 the common law became operative, and therefore the doctrine of assumed risk became a part of the section that created the liability, except to the extent that -the statute may be said to be in conflict with the common law. Thus the old doctrine that the servant injured assumed the risk that his co-servants might be negligent, as an implication from their common employment merely, is not to be held applicable to. the' servants for whose acts the statute makes the master liable, for such a holding would establish in its full vigor the co-servant rule, which the statute was intended, to modify. See Davis v. New York, etc., R. Co., 159 Mass. 532; Woodward Iron Co. v. Andrews, 114 Ala. 243; Southern R. Co. v. Johnson, 114 Ga. 329; Terre Haute, etc., R. Co. v. Rittenhouse, 28 Ind. App. 633; Reno, Employers’ Liability, §§241, 246, 247, 249, 250; Dresser, Employers’ Liability, §2.

It may be said, in passing, that the rule concerning assumed risk.is different in cases arising under the employers’ liability act, where definitive duties are not prescribed, from what it is where a statute points out definitely what *681 the master must do in certain cases to guard the safety of the employe. Davis Coal Co. v. Polland, 158 Ind. 607; Monteith v. Kokomo, etc., Co., 159 Ind. 149; Island Coal Co. v. Swaggerty, 159 Ind. 664.

Of course, in cases of this kind, where the servant is confronted by the exigencies of a new situation, and where he has the implied assurance of reasonable safety to himself, growing out of the command of the person who stands for the master to do the work required, the question of assumed risk often beeomes a mixed one of law and fact. Brazil Block Coal Co. v. Hoodlett, 129 Ind. 327; Indiana, etc., R. Co. v. Bundy, 152 Ind. 590; Shearman & Redfield, Negligence (5th ed.), §186a; Bailey, Master’s Liability, 188, 189. But as the risk that the bent or truss mentioned in the complaint in this case would fall may have appeared glaring, and as the appellee may or should have appreciated the full extent of the danger, we regard the complaint as insufficient.

Judgment reversed, with a direction to sustain the demurrer to the complaint.