Pennsylvania Co. v. Sears

McCabe, J.

Appellee sued appellant, a railway company, for a personal injury resulting from the alleged negligence of the appellant.

Trial by jury, verdict for appellee, upon which judgment was rendered over a motion for a new trial.

The errors assigned here and not waived by failure to argue the same are, the overruling of appellant’s de *462 murrer to the appellee’s complaint, and the overruling of appellant’s motion for a new trial.

The material allegations of the complaint are as follows:

"That for the last ten years the defendant has possessed and operated the Pittsburgh, Fort Wayne and Chicago Railroad, extending from Pittsburgh, in said State of Pennsylvania, through the city of Fort Wayne, Indiana, to Chicago, Illinois.

"Plaintiff further avers that from the 16th of November, 1887, to the 8th of May, 1888, inclusive, he was employed by the defendant as brakeman on the division of its said road between said Ft. Wayne and the city of Chicago; that on said 8th day of May he left Chicago as brakeman on the defendant’s train, No. 76, for said Ft. Wayne. And the plaintiff avers that between the town of Wheeler and the city of Valparaiso, in said State of Indiana, the defendant for the period of, to wit, five years last past has carelessly, negligently, and recklessly maintained an unlawful and dangerous overhead bridge over its said railroad, and unlawfully, carelessly and negligently maintained said bridge so low that when a brakeman passed thereunder standing upon a refrigerator car or other highest cars used by the defendant on its said road, his head would come in contact with and strike against said bridge, and the plaintiff further avers that although the defendant so unlawfully, carelessly and negligently maintained said bridge in a dangerous condition, as aforesaid, yet it carelessly, negligently and unlawfully failed, neglected, and refused to keep proper, suitable, and safe guards up at either side of said bridge in such a position or of such a kind or character as would, with reasonable safety, caution or warn brakemen upon its train that they were approaching and about to pass under said bridge, and the defendant during said *463 period also carelessly, negligently and unlawfully neglected and refused to keep proper, safe and suitable lights or lamps upon said bridge in the night time to notify or warn brakemen upon its freight trains of the presence of said bridge and of their approach thereto.

"And plaintiff avers that, to wit, on said 8th of May, in the night time, while it was dark, he was engaged as such brakeman by the defendant on its said train, No. 76, in running said train eastward upon said road and under said bridge so negligently maintained, as aforesaid, and upon and about which bridge the defendant negligently and carelessly failed at the time said plaintiff was approaching and passing said bridge upon said train, as aforesaid to keep, place, or have any lights upon or about said bridge to warn or notify him that he and said train were approaching and about to pass said bridge; and the defendant also negligently and carelessly, neglected, failed and refused at the time the plaintiff was approaching said bridge and about to pass the same as aforesaid upon said train to place or keep upon or near said bridge any suitable or proper guards or ticklers to give the plaintiff notice that he was approaching or about to pass said bridge, and he avers that after said train passed said town of Wheeler he was diligently and carefully engaged in his duties as such brakeman, and without any fault or lack of care and due diligence on his part, and without any knowledge on his part that he was approaching and about to pass under said bridge, said train, upon which he was so diligently, carefully and faithfully braking as aforesaid, ran past' and under said bridge, and carried the plaintiff, without any fault whatever on his part, under and against said bridge, and whereby, and without any fault on his part, his head was brought in collision with said bridge above said train, and his head collided with said bridge above said *464 train with great violence whereby his skull was fractured, his head and face were bruised, mangled, and crushed, and his lip cut through and greatly injured, and whereby he became and was insensible and helpless, and his shoulder, neck, and body became and were bruised and greatly injured, and whereby he was thrown to the ground upon said railroad track, and the cars ran over him and crushed his leg from his foot to his thigh so that it became necessary to amputate the same, which was done, by means of which injuries he became sick, sore and distressed, and suffered great pain and anguish, both mentally and physically, and his life was for a long time, to wit, for six months, despaired of, and he became, and was and is, wholly disabled from ever again following his business or profession, and from ever again earning his living, and he was compelled to lay out and expend, to wit, $500 in nursing, medicines, and medical and surgical attendance in being treated for said injuries, and he avers that he was so injured as aforesaid without any fault whatever on his part; that he had not, at or before he was so injured, any knowledge or notice whatever that said bridge was so low that it would come in collision with his head or any part of his body, or that it was low enough to touch him as he passed under the same. And he avers that all said injuries were caused by the negligence and carelessness of the defendant as aforesaid, to his damage in the sum of fifteen thousand dollars, for which he sues and demands judgment.”

The first objection urged against this complaint is that it does not state what part of the train appellee was on when he was injured, and that it is not averred that he was standing on any one of the cars when his head came in contact with the overhead bridge.

If it was material or important to appellant to have a more specific statement as to the particular place in the *465 train, appellee occupied when the alleged injury occurred, the appropriate remedy was a motion to require greater certainty in that respect and not a demurrer for want of sufficient facts.

As to the other point, the complaint shows that on the 8th day of May he was engaged as brakeman for appellant on train No. 76 going east from Chicago, and after the same passed the town of Wheeler he was diligently engaged in his duties as such brakeman, and said train ran past and under said bridge, whereby his head was brought in collision with said bridge above said train. From this language we think it' appears that the only place appellant could have occupied at the time the bridge came in contact with his head was on top of some one of the cars in that train. Whether it was a refrigerator or other highest car was not essential to the sufficiency of the complaint. It is fairly inferable from the complaint that it was only refrigerator cars and other highest cars that would not admit a brakeman to stand erect thereon and pass under said bridge in safety, and that all other cars would admit such passage.

Much useless verbiage in the complaint has obscured the statement of these facts to some extent, but not to the extent of destroying them.

The unavoidable conclusion to which the language employed leads, is that the ordinary cars in use on said road would admit such passage.

It is also claimed that the complaint is bad for the reason that it appears therefrom that appellee was not free from contributory negligence. The contention is, that as it appears from its averments that appellee was engaged for appellant as brakeman, from the 16th day of November, 1887, until the 8th day of May, 1888, he had ample opportunity of knowing all about the danger *466 ous character of the bridge; and that, therefore, he assumed the risks of such employment.

The complaint "avers that from the 16th of November, 1887, to the 8th of May, 1888, inclusive, he was employed by defendant as brakeman on the division of its said road between Ft. Wayne and Chicago.” What train he had been braking on during that time, whether freight or passenger, is not stated. If it was either material or useful to appellant’s rights to have the complaint specify the particular train, the only remedy was a motion asking the trial court to require such specification, and not a demurrer for want of facts sufficient. No such motion was made.

It is afterwards averred in the complaint, that appellee had not, at or before he was injured, any knowledge or notice whatever that said bridge was so low that it would come in collision with his head or any part of his body, or that it was low enough to touch him as he passed under the same.

From this language, it clearly enough appears that he in fact did not know of the dangerous character of the bridge, and the demurrer admits that fact. Nor does it appear from the facts stated, that he might have known of such danger, because it does not appear that he was ever braking on a freight train for appellant prior to the occasion on which the alleged injury was received. And if that did appear, still there is nothing in the complaint to indicate that he had ever known of, or seen, "refrigerator or other highest cars” pass under said bridge, either with or without a brakeman standing thereon, or that any other facts existed within his knowledge to warn him of the dangerous character of the bridge. This analysis of the complaint, upon the point in question, makes the long list of authorities cited *467 by appellant’s counsel, in support of his contention, inapplicable.

It is true, as stated in Pennsylvania Co. v. Whitcomb, Admr., 111 Ind. 212, cited by appellant, that "no one is bound to remain in a service which he is informed is dangerous, and if an employe does voluntarily continue in the master’s service after notice of its dangers he assumes all risks arising from the known dangers. * * * The risks which the employe assumes are, however, such as are incident to his service, and such as arise in cases where ordinarily safe machinery and appliances are provided. If machinery of an unusual and more dangerous character is provided, and the employe has no notice of the danger, then he does not assume the risk attendant upon its use.”

To, the same effect are Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151; Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440, and many other cases cited by appellant.

We do not think the danger of an overhead bridge maintained by a railroad company, so low that it may come in contact with the heads of its brakemen while engaged in their duties on top of its cars as they pass under such bridge, is oné of the dangers incident to such service. There are a thousand and one dangers incident to the service of all railroad operative employes that ordinary prudence can not be expected to guard against, and for which the master is not liable, and the risks of which are assumed by the employe, but the maintenance of an overhead bridge so low as to fracture the skulls and endanger the lives of brakemen is not one of them.

The precise question here under consideration was decided by this court in Baltimore, etc., R. R. Co. v. Rowan, 104 Ind. 88, where this court, appropriating the language of the Supreme Court of Massachusetts, said: *468 “He who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services.” “But,” says this court, “there are well defined exceptions to this general rule, one of which arises from the obligation or duty of the master not to expose the servant while conducting his business to perils or' hazards which might have been provided against by the exeroise of due care and proper diligence upon the part of the master. * * * A railroad company is bound to provide suitable and safe materials and structures in the construction of its road and appurtenances, and if, from defective construction of its road and appurtenances, an injury happen to one of its servants, the company is liable for the injuries sustained.” ,

This court held in that case, that a complaint in all respects substantially the same as the one at bar was good on demurrer, and expressly repudiated many of the authorities cited by appellant in this case to the contrary.

That case was cited and reaffirmed by this court in Louisville, etc., R. W. Co. v. Wright, 115 Ind. 378, a case involving the sufficiency of the complaint on demurrer, for an injury received by a brakeman on account of an overhead bridge being too low. The latter case is a stronger one in support of the sufficiency of the complaint here than the former. In the latter case, it appeared that no full grown man could stand erect on any box car and pass under the bridge without striking it; that the plaintiff had been in the employ of the defendant as brakeman over that part of the road where the bridge was, from the 5th of October, to the 4th of November, 1881, and that during that time he passed, with his train, under said bridge, from eight to ten times in *469 the day time, and that many times in the night. He was again employed as brakeman over that part of the road on the 11th or 12th of January, 1882, and he was injured on the night of the 13th of that month, and from his first employment to the time of his injury he had passed under the bridge from seventeen to twenty times, one-half of the number being in the night. And yet it was held in that case, that these facts did not destroy or overthrow the allegation and the finding that he was ignorant of the dangerous character of the bridge, though it was found by the jury in answer to interrogatories that the danger was an open and obvious one in the day time but not at night. And quoting from the first case above, this court said, in the latter case, that “It seems to us that a railroad company is, and ought to be, required to construct and maintain its roadway and appendages, and its overhead structures, in such a manner and condition that its employe or servant can do and perform all the labors and duties required of him with reasonable safety.”

And, applying the language from Indianapolis, etc., R. R. Co. v. Love, 10 Ind. 554, said: “If a defect existed in the road which was known to the company, but which it was impossible for them to immediately remove or remedy, and in consequence thereof the road was unsafe but not impassable, and yet they should place an employe upon the road, and suffer him, in ignorance of said defect, to attempt to operate it, and injury should thereby result to him, certainly there would be a liability.”

To the same effect are Pennsylvania Co. v. Brush, Admr., 130 Ind. 347; Nordyke & Marmon Co. v. Van Sant, 99 Ind. 188; Indiana Car Co. v. Parker, 100 Ind. 181; Krueger, Admr., v. Louisville, etc., R. W. Co., 111 *470 Ind. 51; Bradbury v. Goodwine, 108 Ind. 286; Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440.

And, applying to that case the principles laid down by the Supreme Court of Illinois in Illinois, etc., R. R. Co. v. Welch, 52 Ill. 183, this court, in Louisville, etc., R. W. Co. v. Wright, supra, said: “The railroad track at Mendota was about eighteen inches from the edge of an awning, which projected from the station-house, so that when a freight car stood upon the track the inside edge of the car was about even with the outer edge of the awning. The awning was about eighteen inches higher than the car. There being a signal for brakes, the plaintiff in the case, a brakeman, ran upon the ladder on the side of a car, and before reaching the roof was struck by the awning and injured. It was insisted in behalf of the railway company, that there could be no recovery, for the reason that the brakeman had assumed the risks incident to the service, and had an opportunity to know of the danger from the awning. In answer to that contention the court said: 'There are many freight depots .and station-houses upon the line of the Central Railway, and it would be preposterous in us to say, or to ask a jury to say, that a brakeman engaging in the service of the company must be held to know whether or not there may be one among them whose roof or awning so projects over the line of road that a brakeman on a freight train, in the performance of his duties, would be liable to be swept from the train by a collision with it.’ ” * * “He was required,” said this court, “to observe ordinary care for his own safety, but he was not required to go over the road upon a tour of inspection looking for defective bridges or faulty track before engaging in the service.”

This, we may add, was a duty which the law devolved upon the company, and an employe has a right to presume that the company had done its duty in that respect, *471 and if such inspection revealed any defective bridge or bridges liable to endanger the lives or limbs of their employes operating the road, that the company would give them timely warning thereof.

It is averred that the bridge had been negligently maintained by appellant for five years immediately preceding the injury. Though there is no allegation charging the company with knowledge of the dangerous character of the bridge, yet in the able brief of the distinguished counsel for appellant no objection to the sufficiency of the complaint is made on account of that omission, for the good reason, we presume, that they thought, as we think, that such objection could not be successfully made.

It is true that one of the conditions of the liability of the appellant is that it had knowledge of the defect, or that the circumstances were such that it ought to have known of the defect. The circumstances stated in the complaint speak for themselves, and prima facie raise the presumption that the appellant had knowledge of the defect, or, if it did not, that it was guilty of negligence in not acquiring such knowledge. The occurrence of the injury under the circumstances alleged and admitted by the demurrer raises the presumption of negligence on the part of the appellant. Bedford, etc., R. R. Co. v. Rainbolt, 99 Ind. 551; Shearman and Redfield on Neg., sections 59, 60; Thompson on Neg., 1229, section 3; 16 Am. and Eng. Encyc. of Law, 449, 450. See, also, Ohio, etc., R. W. Co. v. Walker, 113 Ind. 196; Ohio, etc., R. W. Co. v. McCartney, 121 Ind. 385; George H. Hammond & Co. v. Schweitzer, 112 Ind. 246.

Appellant, however, could not very well have maintained the bridge for five years previous to the injury, without any knowledge of its dangerous character. The *472 court below did not err in overruling tlie demurrer to tlie complaint.

The next alleged error is the denial of the motion for a new trial.

The first point made in support of this assignment is that the evidence shows contributory negligence on the part of appellee. This contention is first met by the appellee’s claim that no such question is presented by the record, because, it is contended, the evidence is not in the record. That claim is founded upon the facts disclosed by the return of the clerk to the writ of certiorari.

It appears from the statements of the clerk and his deputy embodied in that return, that the- formal beginning of the bill of exceptions designed to incorporate the longhand manuscript of the stenographic report of the oral evidence and its incidents, etc., was found by him soon after the bill purported to have been signed and deposited in the clerk’s office placed in and between the upper cover of said manuscript and immediately preceding the beginning of the evidence therein, but was not otherwise fastened, copies of each portion of the original bill of exceptions are embraced in the return; that the next part of the original bill was designed to incorporate the depositions, and the return shows that a space was left therein for depositions, and said depositions were placed inside of said bill of exceptions at said point but not otherwise fastened; that the other portions of said bill, being those parts designed to incorporate the instructions given and exceptions thereto, and those refused and exceptions thereto, were placed in and between the leaves of said longhand manuscript of said evidence at the close of the evidence, and the same were signed by the trial judge.

The members of this court, other than the writer, are of the opinion that the integrity of the bill of exceptions, *473 as it appears in the transcript, can not be assailed and destroyed by the statements of the clerk and his deputy, as is attempted in this case; that nothing short of a return to a writ requiring the original bill of exceptions to be certified, and its actual production before this court can authorize the inquiry sought to be made in this case. And a majority of the court hold that if the facts stated in the return were established by competent and legal evidence it would not be sufficient to destroy the integrity of the bill; they regard the practice adopted in this case too loose to be encouraged if it may not be condemned.

The writer differs very widely from the conclusion reached on both points by the other members of the court, and believes therefore that the bill of exceptions is invalid.

There is another reason why the writer is of opinion that the bill of exceptions is invalid, and that is that the bill ought to have been made up by a direction to “here insert” the longhand manuscript and its incidents.

That method was held not authorized by the statute by this court in Wagoner v. Wilson, 108 Ind. 210, and many cases following that case, but the writer is of opinion that those cases were erroneously decided, and is therefore in favor of overruling them, but in this the other members of the court do not concur, therefore Wagoner v. Wilson, supra, is adhered to.

The return of the clerk to the certiorari shows that that part of the bill of exceptions designed to incorporate the depositions into the bill reads as follows: “And be it further remembered that upon and immediately following the close of his oral evidence, the plaintiff introduced in evidence and read to the jury the following depositions of witnesses taken by him on the 11th day of January, 1889, before Matthew W. Wyeth, a justice of *474 the peace of Porter county, Indiana, which said depositions are as follows:” And no other designation or direction was contained in the bill as to where the depositions were to be inserted, or whether they were to be inserted at all or not, and they were not copied into the bill, but the originals thereof were placed inside of the paper on which that part of the bill was written.

It has often been held by this court, that “in order that written instruments shall constitute a part of a bill of exceptions, they must either be copied into it at full length before it is signed or appropriately referred to, and the proper place for insertion designated by the words ‘here insert.’” Clay v. Clark, 76 Ind. 161; Seymour, etc., Co. v. Brodhecker, 130 Ind. 389; Endsley v. State, 76 Ind. 467; Irwin v. Smith, 72 Ind. 482; Kesler v. Myers, 41 Ind. 543; Sidener v. Davis, 69 Ind. 336; Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315; State, ex rel., v. President, etc., Peru, etc., R. R. Co., 44 Ind. 350; Burdick v. Hunt, 43 Ind. 381; Harman v. State, 22 Ind. 331.

We therefore hold that the depositions referred to are not a part of the record, and hence the record shows that the evidence is not all in the record, and, therefore, we can not consider the evidence for any purpose. Clay v. Clark, supra; Millikan v. State, ex rel., 70 Ind. 310; Powers v. Evans, 72 Ind. 23.

The fourth ground assigned in the motion for a new trial is that the court erred in its refusal to give the jury instructions Nos. 1, 2, 3, and 4.

And the fifth ground is that the court erred in giving to the jury * '* instructions Nos. 1, 2, 3, 4, 5, 8, and 9.

It has been held by this court that where a motion for a new trial stated “That the court erred in giving to the jury instructions numbered from one to seventeen *475 inclusive,” joins all the instructions together in general terms, without separating or pointing out any one or more as erroneous. Such an assignment, like a joint demurrer to separate paragraphs of a pleading, can only be maintained by showing that all the instructions are incorrect.” Ohio, etc., R. W. Co. v. McCartney, supra; Wallace v. Exchange Bank, 126 Ind. 265; Jones v. Layman, 123 Ind. 569; Bowman v. Phillips, 47 Ind. 341.

Appellant’s counsel, in their able brief, have not contended that any of the instructions given, except the 1st, 2d, 3d, and 4th, were erroneous; the correctness of the 5th, 6th, 7th, and 8th are not questioned in this court, and we see no objection to them. About the only objection urged to the others is that they were not applicable to the evidence.

As the evidence is not all in the record, the presumption is that they were applicable to the evidence actually introduced, and this presumption can not be overcome until the evidence is in the record from which it shall appear that the instructions were not applicable thereto. Stevens v. Stevens, 127 Ind. 560.

But if the evidence was all in the record the invalidity of the assailed instructions could not be determined, because the motion for a new trial, as we have seen, can only prevail in case all of the seven instructions are bad. The same is true of the instructions refused.

The refusal to give Nos. 1 and 2 is not assailed in this court as error. It is sufficient to say that in the absence of all the evidence it must be presumed that the whole four were refused, if for no other reason, because they were not applicable to the evidence. But we have examined the first and second, and think they are correct in the abstract, and hence it was not error to overrule the motion for that cause, if any part of such instructions were correctly refused.

*476 Filed May 10, 1893.

We have examined all the errors assigned and not waived, and find no available error in the record.

The judgment is affirmed.