OFFICERS OF THE SUPREME COURT ATTORNEY-GENERAL, JAMES BINGHAM REPORTER, GEO. W. SELF CLERK, EDWARD V. FITZPATRICK SHERIFF, MICHAEL MCGUIRE LIBRARIAN, OMAR O'HORROW (xxxvi) CASES DECIDED IN THE SUPREME COURT OF THE STATE OF INDIANA, AT INDIANAPOLIS, NOVEMBER TERM, 1907, AND MAY HASKELL & BARKER CAR COMPANY V. [No. 21,031. Filed January 29, 1908.] 1. RAILROADS.-What Are.-Manufacturing Plants.-A manufacturing plant which uses a "pony" engine in transporting materials about its establishment does not constitute a "railroad." p. 4. 2. APPEAL.-Controlling Questions.-Where the answers to the interrogatories affirmatively show that plaintiff's cause of action is unfounded, other questions raised will not be considered but the litigation will be ended. p. 5. 3. TRIAL-Interrogatories.—Answers.—Negligence.—Leaving Truck Near Track.-An answer to an interrogatory, in an action by a servant against his master for knowingly permitting an empty truck to remain too near a track, thereby causing the plaintiff injuries, that there was no evidence to show when or by whom such truck was so left, fails to show any negligence on the part of the master. p. 8. 4. MASTER AND SERVANT.--Concurrent Negligence of Master and Fellow Servant.-The master is liable to his servant for injuries caused by the master's negligence, though a fellow servant's negligence concurred in producing the injury. p. 8. 5. SAME.-Leaving Truck Near Car Track.-The leaving of a truck in dangerous proximity to a car track is the act of a fellow servant; and the master is not liable for injuries sustained therefrom by a servant, unless such master's negligence also concurred in producing the injury. p. 9. Haskell & Barker Car Co. v. Przezdziankowski-170 Ind. 1. 6. MASTER AND SERVANT.-Safe Place.-The master is required to provide his servant a reasonably safe place in which to work, and to exercise ordinary care to keep such place in a safe condition. p. 9. 7. SAME.-Assumption of Risk.-The servant assumes the ordinary risks of the service which he undertakes, including the risks of the negligence of competent fellow servants. p. 9. 8. WORDS AND PHRASES.-"Place.”—Master and Servant.-The word "place," as used in master and servant cases, imports the premises where the work is to be done, and does not comprehend the negligent acts of fellow servants by which the premises are rendered unsafe. p. 10. 9. MASTER AND SERVANT.—Safe Ways, Works and Machinery.— The master's duty in respect to ways, works and machinery is completed when he has furnished a reasonably safe place in which to work and reasonably safe appliances with which to work. p. 10. 10. SAME.-Leaving Truck Near Track.-A company is not liable for injuries received by its servant because of the temporary leaving of a truck near a track where it was struck by a "pony" engine used by the master in its manufactory, thus causing injuries to such servant. pp. 10, 15. 11. SAME.-Operation of "Pony" Engine.-Lookout.-It does not constitute actionable negligence for a manufacturing company to operate its slowly-moving, "pony" engine in transporting materials about its factory, without the employment of a lookout to discover and warn other servants of danger. p. 11. 12. SAME.-Ncyligence.—Proximate Cause.-The master is not liable for the result of negligence which no reasonable person would have foreseen or anticipated. p. 13. 13. SAME.-Operation of "Pony" Engine Without Fireman.-Proximate Cause.-The failure of the master to provide a fireman, who could warn of dangers, for a slowly-moving, "pony" engine, used in transporting material about the factory is not a proximate cause of an injury received by another servant because of the striking of a truck standing too near the track, by a car pushed by such engine, thus injuring a servant. p. 13. 14. SAME.-Negligence.-Proximate Cause.-When Question for Court. When the facts are undisputed, what is the proximate cause of an injury is a question of law for the court. p. 15. 15. APPEAL.-Final Judgment.--Interrogatories.—Where the answers to interrogatories to the jury show clearly that plaintiff's cause of action is unfounded, a final judgment will be ordered for defendant. p. 15. From Laporte Circuit Court; John C. Richter, Judge. Haskell & Barker Car Co. v. Przezdziankowski-170 Ind. 1. Action by Frank Przezdziankowski against the Haskell & Barker Car Company. From a judgment on a verdict for plaintiff for $9,500, defendant appeals. Transferred from Appellate Court under §1393 Burns 1908, Acts 1907, p. 237, $2. Reversed. Frank E. Osborn, W. A. McVey, Lee L. Osborn and Martin T. Krueger, for appellant. Ellsworth E. Weir, Arthur Irwin, Frank W. Koraleski and Royal W. Irwin, for appellee. MONTGOMERY, J.-This is a common-law action for negligence involving the relation of master and servant. It is averred, among other things, in the first paragraph of appellee's complaint, that appellant owned and operated a manufacturing plant, including a foundry and yards, and through and about its premises operated a certain "pony engine" and cars, and also owned a number of trucks for transporting materials by hand about its establishment; that a railroad track ran through said plant westward to a coal shed, and described a short curve to the north at the point of the accident; that certain piles of iron stood north of said track leaving a space between the same and the track sufficiently wide to allow said trucks to pass in safety; that at the time of the accident appellee was at work north of the track loading certain iron upon a truck; that on said day appellant by and through its servants, whose names are unknown to appellee, carelessly and negligently permitted a certain truck to remain across said passageway in close proximity to the track, and appellant carelessly and negligently permitted its engine to be propelled over said track and past said point in charge of but one man (the engineer), and carelessly failed to provide another person to keep a lookout upon the side of the track where said truck was located; that as said engine passed westward over said track drawing a flatcar, which had two stakes upon each side, running down beyond the bottom of the car bed and resting upon the steel Haskell & Barker Car Co. v. Przezdziankowski-170 Ind. 1. truss which separated the side beams underneath said car, in passing the point where the track curves, and the truck had been carelessly left as aforesaid, said truck was caught by one of the stakes upon said car and carried along and thrown against appellee with force and in such a manner as to crush his leg between said truck and a pile of iron, necessitating amputation at the knee. The second paragraph of complaint alleged that appellant carelessly and negligently suffered and permitted the truck to be placed in its yards in such close proximity to the railroad track that said car in passing that point would hook onto the same, and, knowing of the location of said truck, carelessly and negligently suffered and permitted it to be and remain in such place until the happening of the accident. The negligence alleged in the fifth paragraph of complaint was in allowing a certain footstep on said flat-car to be and remain in a broken, bent and twisted condition, in such a way as to project from the side of the car and catch upon said truck. Demurrers to each of these paragraphs of complaint were overruled, and appellant answered by general denial. A trial by jury resulted in a verdict for appellee, and with its general verdict the jury returned answers to numerous interrogatories. Appellant's motion for judgment upon the answers of the jury to interrogatories, notwithstanding the general verdict, and motion for a new trial, were overruled, and judgment rendered in favor of appellee in accordance with the general verdict. The assignment of errors in this court embraces all adverse rulings. Appellant is not a railroad company engaged in transportation, and it appears from the evidence 1. and answers to interrogatories that the car in question was owned by another company, and was received upon its siding merely to be unloaded. It is manifest, therefore, that the duty of inspection owed by a transportation company to its employes does not obtain in this case. Louis |