The Toledo, St. Louis And Kansas City Railroad Company v. Trimble

• Decision Date: 28 November 1893
• Docket Number: 767
• Citation: 35 N.E. 716,8 Ind.App. 333
• Parties: THE TOLEDO, ST. LOUIS AND KANSAS CITY RAILROAD COMPANY v. TRIMBLE
• Court: Indiana Appellate Court

35 N.E. 716

8 Ind.App. 333

THE TOLEDO, ST. LOUIS AND KANSAS CITY RAILROAD COMPANY v. TRIMBLE

No. 767

Court of Appeals of Indiana

November 28, 1893

From the Clinton Circuit Court.

Judgment reversed, at cost of appellee, with instructions to sustain the motion for a new trial.

S. O Bayless and C. G. Guenther, for appellant.

M Bristow and J. T. Hockman, for appellee.

OPINION

LOTZ, J.

The appellee's minor son was killed while in the employ of the appellant as a night switchman. This action was brought to recover damages for the loss of his services during his minority. The complaint proceeded upon the theory that the son had been employed by the appellant in a dangerous and hazardous service, without the consent of the appellee; that he was inexperienced, and appellant failed to give him proper instructions, and that the son's death resulted from the unskillful and negligent conduct of the engineer in charge of the engine. There was a trial by jury and a special verdict returned.

Several errors are assigned, but the only ones discussed by appellant are that the court erred in overruling the motion for judgment in favor of the appellant on the special verdict and in overruling the motion for a new trial. The special verdict is as follows:

"First. We find that the defendant is a corporation duly organized under the laws of the State of Indiana, and as such corporation is now, and has been, for more than two years last past, conducting and managing a general railroad business between the cities of Toledo, Ohio, and St. Louis Missouri, and controlling and operating locomotive engines cars, and other property upon the defendant's said railroad.

"Second. That the railroad track of defendant passes through the county of Clinton and State of Indiana.

"Third. That as a part of said railway of defendant and its appurtenances thereunto belonging, the defendant has maintained for more than two years last past, in and adjacent to the city of Frankfort, in said Clinton county, a large yard covered with switches (side tracks), which are used by the defendant for standing cars and general switching purposes, upon which tracks trains are made up by the defendant preparatory to their being transported over the defendant's said railroad, both east and west, from said yard.

"Fourth. That at and in said yard, and for the purpose of conducting the business thereof, the defendant employed locomotive engines propelled by steam, and crews of employes, one of which crews, for more than two years last past, has attended to such duties of switching from the hour of six o'clock in the evening until six o'clock the next morning, at which time another crew takes charge of such switching work.

"Fifth. That the said city of Frankfort is, and has been for more than two years last past, a division point in the defendant's said railway system, and at the aforesaid yards all freight trains are rearranged before being transported over the defendant's said railway, both east and west from said Frankfort and from said yards.

"Sixth. That to do said service of said night switching in said yard, it required the services of the said night crew the entire night, and until six o'clock of the following morning, to get the said freight trains ready to move.

"Seventh. That the work of switching during the night time, and the making up of trains during that time, was, from April 2d to May 7th, 1891, dangerous to the persons of the said night crew, and required skilled and experienced persons to operate the locomotives, and shift and switch the cars in said yard.

"Eighth. That from April 2d to May 7th, 1891, in said yard of the defendant, and at the switches and side tracks in said yard adjacent to said defendant's railroad track, no lights were kept to aid said night crew in their said work of switching, except the small lanterns carried by the employes engaged in said work and the headlight of the switching engine.

"Ninth. That said work of night switching during said time last aforesaid was also hazardous and dangerous in this--that by reason of the short runs made each time in changing the situation of the cars, the sudden starting and stopping of the locomotive and cars attached, the jars caused by the coming together, the constant coupling and uncoupling of the cars, requiring a switchman each time to go between the cars, the necessity of switchmen having to ride upon the tops of the cars much of the time during switching, all of which rendered the employment and duties of night switchmen particularly hazardous and dangerous, and especially so to employes of immature years and inexperience in this class of labor.

"Tenth. That on April 2d, 1891, the defendant, without the consent of the plaintiff, employed one Charles C. Trimble, a son of the plaintiff, to serve in said yard of defendant, in the capacity of night switchman; that at the time of said employment of plaintiff's son by defendant, said Charles entered the service of said defendant and continued in said service until the day of his death, to wit: May 7th, 1891.

"Eleventh. That said Charles, pursuant to the terms of said employment, went on duty as such night switchman, with said night crew, at six o'clock in the evening of each day, served during the entire night at such work until six o'clock the next morning, except the morning of May 7th, 1891. That under said employment, and as a part of the duty of said Charles, he did, during said employment in the night time, couple and uncouple cars, open and close switches, and was compelled, in the proper discharge of his duties at such times, to ride upon the tops of the cars; that during the time of such employment, and while said Charles was on duty at said work, said cars were shifted and changed from place to place by means of a locomotive engine propelled by steam.

"Twelfth. That said Charles, at the time of said employment by defendant, was nineteen years of age, had never served in the capacity of switchman, and was wholly inexperienced to do such duties incumbent upon him in such service, with safety to his person. That at the time said Charles entered the service of the defendant as aforesaid, the defendant had knowledge of his youth and inexperience to perform the duties attending the service of night switchman, but at the time of said employment the defendant failed to instruct said Charles of the dangers attending such service, and failed to give him the necessary instructions as to how to avoid the dangers attending the same.

"Thirteenth. That on the evening of May 6th, 1891, said Charles went on duty in said service as switchman, to serve until six o'clock of the morning of the 7th day of May. That the night switching crew on duty on said night consisted of George Beech, engineer; Alfred Allison, fireman; George V. Keefer and said Charles C. Trimble, switchmen. That the switching locomotive engine used by said crew on said night, and until the following morning at five o'clock, was known as engine No. 94. This engine was at said time owned and operated by the defendant. It was formerly a narrow gauge engine, and had been widened to standard gauge prior to said night. That said engine was of low build, the cylinder cock being about three to five inches above the tops of the rails.

"Fourteenth. That about five o'clock of the morning of said May 7th, it became necessary in the line of duty for said crew to move five freight cars from said yard of defendant to the "house switch" of defendant in said city; that said switching engine, with said engineer Beech in charge, was fronting to the east, and pushed said cars from the yard east, toward the said house switch.

"Fifteenth. That when said engine and cars were moving toward said house switch, said Charles and the associate switchman were riding upon the top of the east end of the fifth freight car. When the front car was within about (200) two hundred yards of the house switch, the engineer, Beech, was signaled to slacken up for the switch; at or about the time said signal was given to the engineer, said Charles, who was standing about the center of the last or fifth car, started to go to the east end of the car, where the ladder was, for the purpose of going down to throw the house switch; that when he was near the end of said car, the engineer unnecessarily reversed said engine and caused said engine and cars to stop with...