The Louisville, New Albany & Chicago Railway Company v. Wright

• Decision Date: 23 March 1888
• Docket Number: 11,891
• Citation: 16 N.E. 145,115 Ind. 378
• Parties: The Louisville, New Albany and Chicago Railway Company v. Wright
• Court: Indiana Supreme Court

16 N.E. 145

115 Ind. 378

The Louisville, New Albany and Chicago Railway Company v. Wright

No. 11,891

Supreme Court of Indiana

March 23, 1888

Reported at: 115 Ind. 378 at 394.

From the Jasper Circuit Court.

Judgment affirmed, with costs.

W. F Stillwell, G. W. Friedley and G. W. Easley, for appellant.

W. P Adkinson, M. F. Chilcote, J. P. Wright and E. P. Hammond, for appellee.

OPINION

Zollars, J.

It is charged in the complaint that near Putnamville the track of the railroad is laid in a deep cut over which is a bridge upon a public highway; that the railroad company negligently constructed, and has negligently maintained, the bridge so low as not to afford sufficient space to allow brakemen walking or standing upon freight cars in the discharge of their duty in the management of trains to pass under it with safety; that the railway company could, and should, have so constructed the bridge that brakemen could thus pass under it in safety; that it had full knowledge that the bridge was dangerous to its brakemen operating its trains; that it negligently failed to place upon or about the bridge lights or other danger signals in common use with well managed railways, to warn brakemen of the danger.

It is further alleged that on, and for a short time prior to, January 13th, 1882, appellee was engaged in the service of the railway company as a brakeman upon a freight train which passed back and forth over the road, under the bridge, and that with full knowledge of the dangerous condition of the bridge, the railway company negligently failed to notify him of the danger; that when the train upon which he was engaged as a brakeman was approaching the bridge at about 3 o'clock a. m. of January 13th, 1882, and when the rain was falling and a heavy fog and intense darkness covered everything, so that appellee could not see or determine what point the train was passing or approaching, and being unacquainted with that part of the railway, and not knowing that the train was approaching a dangerous bridge, appellee obeyed a call to brakes made by the engineer in charge of the engine and went upon the top of the cars to set the brakes, as it was his duty to do as such brakeman, and that while setting the brakes the train passed under the bridge, which, without any fault or negligence on his part, was brought in contact with the back part of his head with such force as to fracture his skull, thereby rendering him unconscious for weeks, causing him great suffering, both physical and mental, so as to impair his mind, causing paralysis of his right side, and thus rendering him a cripple for life, so that he is, and will continue to be, unable to make a living by manual or mental labor. The complaint closes with a general charge that all of the injuries were the result of negligence on the part of the railway company, and without negligence on the part of appellee.

A motion was made below for an order upon appellee to make the complaint more specific. The motion was overruled.

We have considered the arguments of counsel in support of the motion, but do not think that the matter is of sufficient importance to require more than a statement that, whether the ruling of the court below was right or wrong, no substantial injury could result to appellant.

The court below overruled a demurrer to the complaint, and also a motion by appellant for judgment in its favor upon the answers of the jury to the interrogatories submitted by its counsel. Those rulings are assigned as errors. They may be considered together.

The substance of the answers of the jury to the interrogatories, so far as material, is as follows:

At the time of the injury to appellee, the railway company was maintaining, and for seven years prior thereto had maintained, an overhead bridge upon a highway crossing its track a short distance south of the town of Putnamville. The distance from the top of the rails upon the track to the bridge above was, and is, fifteen feet and nine inches. The box freight cars used by appellant were eleven feet high. Neither appellee nor any other full grown man could walk or stand erect upon the top of such box-cars passing upon the track under the bridge without coming in contact with it. The only way in which appellee could have passed under the bridge in safety, when upon the top of such box-cars, was to sit down, or stoop very low. He could neither sit down nor stoop low enough to escape danger, and at the same time apply the brakes. The railway company neither erected nor maintained any danger signals to warn brakemen of the approach to or nearness of the bridge. By reason of the lowness of the bridge, and the lack of danger signals, the service of a brakeman upon appellant's freight trains over that part of its road was a hazardous and dangerous service, and that fact and all other facts in relation to the bridge were known to the railway company before and at the time it employed appellee as a brakeman, and at the time he was injured. Previous to his employment upon appellant's road, appellee had had about one month's experience as a brakeman upon the Ohio and Mississippi Railroad. He was first employed by appellant on the 5th day of October, 1881, as a brakeman upon a freight train, his run being from New Albany to Greencastle, and continued in the service until the 4th day of November, 1881. That run carried him under the bridge in question. During that employment he passed with his train under the bridge from eight to ten times in the daytime, and the same number of times in the night. Subsequently, and on the 11th or 12th day of January, 1882, appellee was again employed by the railway company as a head brakeman to assist in operating freight trains, his run, as before, being from New Albany to Greencastle, and under the low bridge. From his first employment up 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-time. At no time previous to his injury did he know that the bridge was too low to allow him to pass under it with safety when standing or walking upon the box-cars in attending to the brakes. He had no knowledge that the service was a hazardous one, by reason of the low bridge, and was not notified of that fact, nor of any fact as connected with the bridge, either by the railway company or any other person. The jury further answered, that, prior to his injury, appellee did not have an opportunity to know that the bridge was too low to allow him to pass under it with safety when standing or walking upon the top of freight cars. They also answered, that he made no effort to ascertain the height of the bridge, or whether or not he could with safety pass under it when upon the top of box-cars attending to the brakes.

They further answered that the danger of brakemen being struck by the bridge was an open and obvious one in the daytime, but not at night. They still further answered, that, during the time appellee was in the employ of the railway company, he could not, by an ordinarily careful use of the opportunities afforded him, have discovered that the bridge was so low as to be dangerous.

On the morning of the 13th day of January, 1882, when it was yet dark, appellee started with his train south from the Greencastle junction towards New Albany. He knew that the first station south was Putnamville, and that the bridge in question was near to and south of the station, but he did not know of the danger. When within about one-third of a mile of Putnamville, the engineer, by the use of the steam whistle, called for the setting of brakes. In obedience to that call, appellee went upon the top of the cars and moved from the front towards the rear end of the train, until he reached the brake. The train was moving over a down-grade, and did not stop at Putnamville, but passed through and under the bridge some fifteen hundred feet south, the engineer not having shut off the steam soon enough to stop the train at the station. As the train passed under the bridge, appellee being at the brake in a stooping posture, and his face towards the rear of the train, the bridge struck him upon the back of the head, about one and one-half inches from the top.

When called upon the top of the cars, appellee, because of the darkness, did not know what portion of the road the train was passing over. When the train was passing through Putnamville he was not aware of the fact, and when injured did not know that the train was near the bridge. After going upon the top of the cars he did not look in the direction in which the train was moving, and could not have seen the bridge had he looked, because of the darkness. Appellee could not, by the use of ordinary care and diligence, have avoided the injury.

In support of the motion for judgment in favor of the railway company upon the above answers to the interrogatories, its counsel argue that, upon the facts disclosed, it must be presumed and concluded as a matter of law that appellee contracted with the company with reference to the hazardous nature of the service, and that, therefore, he can not recover.

The objections urged to the complaint, as we gather from the argument, are:

First. That no facts are alleged showing that the railway company was under a duty to erect or maintain any other or different bridge from that in question;

Second. That no facts are averred showing that it was the duty of the railway company to have warned appellee of the danger, because the danger was in its nature open and obvious;

Third. That it is not shown by the averments of the complaint that appellee's ignorance of the lowness of the bridge was not the result of want of ordinary care on his part;

Fourth. That no facts are...