New York Cent. R. Co. v. Verpleatse , 116 Ind. App. 1 ( 1945 )

ON PETITION FOR REHEARING In our original opinion we said the overruling of appellant's motion for new trial was the only error assigned. The appellant also assigned error in the overruling of its motion for judgment in its favor in conformity to the verdict returned by the jury, notwithstanding the general verdict in favor of appellee.

To sustain that motion the appellant first asserted that since the verdict found for the appellee Graham it also in effect found for appellant, and so a judgment against appellant based on that verdict cannot stand. We believe that phase of appellant's contention was sufficiently considered in our original opinion.

The appellant also asserts that assuming the correctness of our construction of Rule 4033 as a safety rule under which the foreman was required to give attention to the appellee in 20. the interest of the latter's safety, the appellee nevertheless did have some warning of the approach of the engine and therefore the failure of the foreman to warn appellee of its approach could not have been the proximate cause of his injuries. This contention is based on the proposition that by its verdict the jury exonerated the engineer and so must have found that he did give the appellee some warning of the approach of the train and so was not negligent, and if the engineer did give appellee some warning of the approach of the train, the foreman's failure to give him any additional warning could not have been the proximate cause of the appellees' injuries. The appellant cites Baltimore, etc., R. Co. v. Abegglen (1908), 41 Ind. App. 603, 84 N.E. 566, and Baltimore, etc., R.Co. v. Musgrave (1900), 24 Ind. App. 295, 55 N.E. 496, to the proposition that if a traveler on a highway already has knowledge of the approach of a train, the failure of the railway company to give him further notice of its approach by way of statutory signals could not be the proximate cause of his injury. The soundness of those cases cannot well be doubted, but the rule announced in them seems scarcely applicable to this case. Assuming, as claimed by appellant, that the jury exonerated Graham because they found he was not negligent in failing to give any warning of the approach of the train, and admitting that his exoneration on that charge also exonerated the appellant in that regard, the verdict is still not tantamount to a finding that the appellee heard and recognized the warning and knew of the close approach of the engine. The evidence is to the effect that the appellee heard no warning and did not see the train approaching him. We adhere to our opinion that it was for the jury to determine whether, considering the conditions and circumstances under which the appellee was working, as outlined in our original opinion, the conduct of the foreman measured up to the requirements of Rule 4033, and we cannot say as a matter of law that no failure on his part to comply with the requirements of that rule could have been the proximate cause of appellee's injuries.

The appellant contends we erred in stating it conceded in its brief that the engineer could not be held liable in this case. We find in one of appellant's briefs the following language: "At no time during the trial of said cause, was any instruction tendered by either party hereto, or given by the court which would or did exonerate Engineer Graham on account of the fact that Engineer Graham would not be liable under the Federal Employers' Liability Act." We construed this to be an admission that the engineer would not be liable under the Act. If we were mistaken in our construction of this language it has not harmed the appellant, for its contention with reference to the exoneration of the servant being the exoneration of the master was considered only in the light of the theory upon which the case was tried.

The appellant complains because, in our original opinion, we used the words "general foreman" to distinguish the section foreman from his assistant, and appellant insists this reference is not justified by the evidence. However, the record shows the section foreman was the one who gave the general orders concerning the work, and reference to him as such in our opinion could not be harmful to appellant.

The appellant insists that any construction of Rule 4033 which would require the foreman to give any attention to the safety of their men while working along the tracks, so far as 21, 22. danger from approaching engines is concerned, is erroneous, since Rule 4032 specifically imposes upon the men the duty to be on the lookout for themselves and not to depend on the foreman and therefore makes the men solely responsible for their own safety. The parties agree that we are required to construe the rules together so as to give effect to all, if possible, and not to abrogate any. This we have attempted to do. Rules, to be enforceable, must be reasonable. If we were to construe this rule as releasing the appellant from any duty to use any care for the safety of its men working along the tracks, it would immediately become unreasonable and therefore unenforcible and of no avail to the appellant. Willis v.Atlantic Danville R. Co. (1898), 122 N.C. 905, 29 S.E. 941.

There is uncontradicted evidence to the effect that at safety meetings appellant's foremen cautioned workmen, including appellee, to depend upon their own watchfulness and be on 23. the lookout for engines, and appellant asserts that under this interpretation of Rule 4033 the appellee could not rely upon any warning from others. The evidence does not disclose that he relied upon any warning from any other, and in any event the interpretation put upon the rules by appellant's foreman, while entitled to consideration, cannot be permitted to contradict or abrogate an explicit rule made for the safety of an employee. 39 C.J., p. 480, § 593.

The appellant insists our construction of the rules is impractical; that section hands frequently work along the tracks alone rather than in groups, and our interpretation of the rules would require the foreman to keep a constant lookout for the safety of each individual workman. The necessity for such watchfulness would of course largely depend upon the conditions under which the men were directed or permitted to work.

Other questions raised or elaborated in the petition for rehearing do not in our opinion require further comment. Petition denied.

NOTE. — Reported in 60 N.E.2d 784.