Vandalia Railroad v. Holland

Spencer, J.

— This is an action by appellee against appellant under the Federal Employer’s Liability Act to recover damages for personal injuries sustained by appellee while in the employ of appellant as a switchman. Verdict and judgment in favor of appellee. The sole error assigned and relied on for reversal in this appeal challenges the action of the lower court in overruling appellant ,’s motion for a new trial.

At the time of the injury the switching crew of which appellee was a member was engaged in switching ears on appellant’s tracks, a short distance west of the union station in the city of Indianapolis. Appellee was on top of the fifth car from the engine of a cut of six cars which was being pushed westwardly by said engine. He was walking over said fifth car toward the west end of the cut when the sixth car separated from the one he was on and he fell between the ears to the ground, receiving the injuries of which he complains. Three acts of negligence are charged in the complaint: (1) that the automatic couplers between the cars which separated were defective in this, that the locks and pins of said couplers were out of condition and worn and bent so that said couplers would not hold; that said couplers would come together and lock and couple, but that when the weight of said ear came upon said coupling, the jaws would open out and permit said couplers to come uncoupled; (2) that the engineer and conductor in charge of said cut of cars negligently backed the same at a high and dangerous rate of speed, to wit, from ten to twelve miles *441 an hour; and (3) that while so backing said cars at said high and dangerous rate of speed said engineer and conductor, without warning or notice to appellee that they were going to stop said cut of ears, did stop the same negligently and with great suddenness, thereby causing the last car, by reason of its great momentum, suddenly to leave and run away from the car on which appellee was riding and from which he was in the act of stepping to said last car.

1. 2. Instruction No. 11, given by the court of its own motion, told the jury that it was the duty of a master to furnish his servant with a reasonably safe place in which to do his work. No contention is made that the instruction is erroneous as an abstract statement of law but it is insisted that the pleadings presented no issue as to “safe place” and that the instruction was therefore inapplicable and misleading. Appellee’s working place was on top of the cut of cars and it was appellant’s duty to exercise reasonable care to make and keep that working place free from unusual dangers. If, through the negligence of appellant, appellee was exposed to dangers extra hazardous and not ordinarily incident to his employment which, without fault on the part of appellee, proximately contributed to the injuries of which he complains, appellant may then be said to have rendered appellee’s working place unsafe and must respond to him in damages. The complaint before us is fairly open to the construction that it is predicated on negligence thus tending to render appellee’s working place unsafe and we hold the instruction to be within the issues. Consolidated Stone Co. v. Ellis (1910), 46 Ind. App. 80, 85 ; 4 Thompson, Negligence §§3873, 3874, and cases cited.

3. *442 4.

*441 Instruction No. 16 given by the court told the jury, in part, that “if you further find that the defendant knew, or could have known of said defects in said coupler, if the same was defective, in time to have repaired the ' same or notified the plaintiff of its said defective con *442 dition, and. failed to do so”, it might find appellant guilty of negligence. It is contended that this instruction virtually made appellant an insurer as to the safety of the coupler. Assuming that the instruction might properly have limited appellant’s duty to the exercise of ordinary care in the matters indicated, we cannot agree that appellant was harmed for the reason that the modification was repeatedly made in other instructions given. For instance, instruction No. 11 given by the court of its own motion told the jury that appellant’s duty toward appellee was “measured by the standard of ordinary care”, while other instructions expressly stated that appellant was not an insurer of the safety of its employes. But see Indiana Union Traction Co. v. Abrams (1913), 180 Ind. 54, 61 . Considering the charge as a whole, we can not say that the omission of a modifying phrase from instruction No. 16 constitutes reversible error. American Car, etc., Co. v. Adams (1912), 178 Ind. 607, 616 , and cases cited. Instruction No. 17 given by the court of its own motion and now criticised by appellant is in the exact language of instruction No. 11 tendered by appellant and also given by the court.

5. We have carefully examined instructions Nos. 7, 10, 15 and 16 tendered by appellant and refused. So far as they correctly stated the law applicable to the issues they were covered by other instructions given and we see no error in their refusal. Instructions Nos. 10 and 16, thus refused, entirely ignored the charge in appellee’s complaint that the negligence complained of not only caused the ears to separate but produced a sudden and unusual separation of which appellee had no notice or warning.

6. *443 7.

*442 Finally, it is insisted that the verdict is not sustained by sufficient evidence and is contrary to law for the following reasons: (1) that the evidence does not show that appellee’s injuries were sustained while the parties were engaged in interstate commerce; (2) that appellee’s injuries resulted from risks and hazards ordinarily *443 incident to the work in which he was engaged; and (3) that said injuries were caused by his own failure to see that the coupling was made, as it was his duty to do, before he gave the signal for the movement of the cars. The second and third of these reasons state questions of fact which were submitted to the jury under proper instructions and decided adversely to appellant’s contention on evidence which is conflicting. On the first reason assigned it appears that at the time of the accident appellee was a member of a switching crew which was engaged in switching cars from points on appellant’s tracks to other points on said tracks, all in the city of Indianapolis. It further appears, however, that said switching crew was engaged in handling all of the cars that belonged to appellant, or that were in its trains as they came through the yards; that said cars came from all parts of the country and were made up into trains which went to all parts of the country. There' were in the cut of ears, cars that went to St. Louis, Missouri. Under such circumstances both appellant and appelleé were engaged in interstate commerce. Cleveland, etc., R. Co. v. Public Service Com. (1915), ante 165; Northern Pac. R. Co. v. Maerkl (1912), 198 Fed. 1 , 117 C. C. A. 237 ; Colasurdo v. Central Railroad, etc. (1910), 180 Fed. 832 ; Zikos v. Oregon B., etc., Co. (1910), 179 Fed. 893 ; Norton v. Oregon-Washington R., etc., Co. (1913), 72 Wash. 503 , 130 Pac. 897 , 47 L. R. A. (N. S.) 8.

We find no reversible error and hold that the judgment should be affirmed. Judgment affirmed.

Note. — Reported in 108 N. E. 5S0. As to proper, subjects of instructions to jury, see 72 Am. Dec. 538 . As to constitutionality, application and effect of Federal Employer’s Liability Act, see 47 L. R. A. (N. S.) 38; L. R. A. 1915 O 47. As to employes entitled to protection under Federal Employer’s Liability Act, see Ann. Cas. 1914 C 164. See, also, under (1) 26 Cyc. 1494; (2) 26 Cyc. 1123; (3) 26 Cyc. 1491; 38 -Cyc. 1778; (4) 38 Cyc. 17S8; (5) 38 Cyc. 1711; (6) 3 Cyc. 348; 26 Cyc. 1516; (7) 7 Cyc. 1915 Anno. 427-31.