14 N.E. 391 (Ind. 1887), 12,576, Wabash, St. Louis And Pacific Railway Company v. Locke

Docket Nº:12,576
Citation:14 N.E. 391, 112 Ind. 404
Opinion Judge:Mitchell, C. J.
Party Name:The Wabash, St. Louis and Pacific Railway Company v. Locke, Administrator
Attorney:C. B. Stuart and W. V. Stuart, for appellant. J. L. Farrar, J. Farrar, H. J. Shirk and J. Mitchell, for appellee.
Case Date:November 30, 1887
Court:Supreme Court of Indiana

Page 391

14 N.E. 391 (Ind. 1887)

112 Ind. 404

The Wabash, St. Louis and Pacific Railway Company


Locke, Administrator

No. 12,576

Supreme Court of Indiana

November 30, 1887

From the Wabash Circuit Court.

The judgment is reversed, with costs, with directions to sustain the appellant's motion for a new trial.

C. B. Stuart and W. V. Stuart, for appellant.

J. L. Farrar, J. Farrar, H. J. Shirk and J. Mitchell, for appellee.


[112 Ind. 405] Mitchell, C. J.

Abia K. Locke, as administrator of the estate of John Bradley, deceased, brought this action against the Wabash, St. Louis and Pacific Railway Company and the [112 Ind. 406] Western Union Telegraph Company to recover damages for wrongfully causing the death of Bradley.

There was a verdict against both defendants below, and a judgment against the railway company alone.

The evidence most favorable to the plaintiff tended to establish the following facts:

On the 14th day of November, 1882, John Bradley, a citizen

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of Wabash county, aged about forty-four years, was engaged with some workmen in loading logs on a flat-car, which stood upon one of the side-tracks on the south side of the railway company's main line at Keller's Station. The side-track upon which the flat-car stood was twenty-five feet distant from the main line, which ran east and west, there being also another track between the main line and side-track above mentioned. The depot was on the north side of the main line, and a short distance easterly from the place occupied by the flat-car.

The Western Union Telegraph Company had a line of telegraph poles of the usual height, which supported a number of telegraph wires, in the customary manner, running east and west along the south side of the railway company's right of way. In order to afford facilities for telegraphic communication to and from the station, the company carried some of its wires from a pole standing on the south side of the right of way, and west of the depot, and west of the point where the flat-car stood, diagonally across the tracks to a pole on the north side of the right of way, and thence eastwardly along the north side into an office in the depot building.

These wires had been placed across the track about the year 1874, and had been maintained substantially in the same position until the happening of the accident which gave rise to this suit. One of the wires was used by the railway company in its business. The others were employed in the business of the telegraph company.

While Bradley was occupied with his work on the flat-car, the location of which has been described, an east bound [112 Ind. 407] freight train, running on its usual time, at a moderate rate of speed, approached the station over the main track. On one of the cars, which was of a height somewhat above that of an ordinary freight-car, stood a brakeman six feet three and one-half inches in height. His head came in contact with one of the wires which crossed the track in the manner above described, the wire striking the back of his head or neck, about the lower part of the ear. A slight bruise was the extent of the injury suffered by the brakeman. The effect of the contact was, however, to break the insulator on the south pole, thereby causing the wire to become detached from its place, and to fall down on the top of a moving car. One of the brake-handles which extended above the car to the usual height caught the wire and carried it forward with the moving train.

In falling, the wire in some unaccountable manner coiled around the body of Bradley as he stood on the flat-car, and, being carried eastward by the moving train, the wire dragged him from the car on which he stood, and eastward in the direction the train was proceeding, some 125 feet, inflicting injuries which resulted in his instant death.

So far, the facts are substantially undisputed, except that the brakeman who came in contact with the wire testified that the car upon which he stood was of the ordinary height, while witnesses for the plaintiff, not connected with the train, reckoned it to be from twelve to eighteen inches above an average.

The "tall brakeman," as he is described, testified that he had passed under the wires, standing erect on the top of the cars, almost daily for sixty days immediately preceding the accident, without thought of danger, and without supposing that he could touch the wires. He passed under it the day before, as he and many others had frequently done at other times, without stooping his head or apprehending danger. During all the years that the wires crossed the tracks, brakemen standing on cars of various heights had passed under [112 Ind. 408] them many thousand times, and it had never been suggested or supposed that there could be any contact between persons standing on the top of trains and the telegraph wires. The superintendent of the telegraph line and the line repairers had passed along the line frequently and regularly, and had discovered no defect or displacement of the wires or fastenings at the place in question.

The record contains no direct notice of any kind from any source that the wires were dangerous. If there was any notice at all it was such as the structure itself and the position of the wires thereon afforded.

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The evidence tends to show that one of two things made the accident possible. The plaintiff's case proceeded upon the theory that one of the telegraph wires had "sagged" some ten or twelve inches below its usual and proper height, and that a brakeman some inches taller than the average, standing erect on a car some twelve to eighteen inches above the ordinary height, came in contact with the depressed wire.

There was some evidence tending to show that one of the wires had presented the appearance of being slackened and somewhat lower than the other for some months prior to the accident. All the railroad and telegraph men, however, disputed this fact, the latter affirming that a "sagged" wire in the position of the one described could not have been used, and that these wires were all in daily use.

The defendant's theory was that the guy-wire which held the north telegraph pole in position had been broken or cut a short time prior to the accident, and that, on account of the breaking or cutting thereof, of which it remained ignorant until after the accident, the top of the pole was slightly pulled to the south, thus making contact with the wires possible under the peculiar circumstances of this case.

The jury adopted the plaintiff's theory. Assuming, therefore, that the evidence justified the jury in finding that one of the wires had by some means become lowered in the center, and that it continued in that position for a period of [112 Ind. 409] six or eight months before the accident, so that a brakeman six feet three and one-half inches in height, standing erect on a freight-car from twelve to eighteen inches above the height of an ordinary car, might come in contact with the wire in the manner already described, and the question remains, was the railroad company bound to take notice that the wire created a condition of things such as it might reasonably have been anticipated would result in accident and injury to some one for whose safety the corporation was bound to take due and reasonable precaution?

Actions in tort, to recover for injury to persons or property, ordinarily arise out of, or are predicated upon, acts or omissions which are or may be classified under the following divisions:

1. The action may be brought to recover for an injury caused by an act which was done purposely and wilfully, without lawful excuse or justifiable occasion, and with the actual or constructive intent to produce harm.

2. The injury may have resulted from the commission of a distinct legal wrong, or from the failure to discharge some special or absolute duty which in itself constituted an invasion of the rights of, or an infraction of the obligation due to another, who was without fault; or an act done or omitted in violation of a positive statute may have resulted in injury to some one within the protection and purpose of the statute, who was without fault materially contributing to the injury; there being in either case no intent or expectation on the part of the defendant that injury would result from the act or omission. Or,

3. The injurious act or omission may not have been done or omitted with any intent to produce harm, nor in the invasion of any distinct or absolute legal right of another, nor in violation of any positive law or special or absolute obligation; nevertheless injury may have resulted therefrom which, in the exercise of due diligence and skill, might have been foreseen and prevented, and the person upon whom the injury [112 Ind. 410] has fallen may have been one for whose safety and protection the defendant was at the time under some qualified or limited obligation. Pollock Torts, 19; Cooley Torts, 85; Bennett v. Ford, 47 Ind. 264; Brown v. Kendall, 6 Cush. 292.

It is important, therefore, in each particular case, that regard be had to the class within which the facts bring it. When the facts are such as to bring a case within either the first or second of the above divisions, the act itself constitutes the wrong, and fixes the right of action, leaving the amount of recovery to depend upon the injury which the evidence may show followed as a sequence of the act. "The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise." Lane v. Atlantic Works, 111 Mass. 136.

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True, if the question be whether or not the...

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