42 N.E. 816 (Ind. 1896), 16,361, The Pennsylvania Co. v. Finney

Docket Nº:16,361
Citation:42 N.E. 816, 145 Ind. 551
Opinion Judge:Jordan, J.
Party Name:The Pennsylvania Co. v. Finney, Administrator
Attorney:Allen Zollars, for appellant. L. M. and H. W. Ninde, for appellee.
Case Date:January 29, 1896
Court:Supreme Court of Indiana
 
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42 N.E. 816 (Ind. 1896)

145 Ind. 551

The Pennsylvania Co.

v.

Finney, Administrator

No. 16,361

Supreme Court of Indiana

January 29, 1896

Rehearing Denied June 17, 1896.

From the Allen Superior Court.

Reversed.

Allen Zollars, for appellant.

L. M. and H. W. Ninde, for appellee.

OPINION

[145 Ind. 552] Jordan, J.

The appellee, as the administrator of Patrick J. Finney, sued to recover damages growing out of the death of his decedent, through the alleged negligence of the appellant. The complaint, among other things, avers that the appellant is a corporation and operates a railroad running from Pittsburgh to Chicago through Columbia City and Fort Wayne, Indiana; "that on the 5th day of April, 1890, at and near the defendant's station at Columbia City, the defendant carelessly and negligently maintained a water plug so near its track that a brakeman, standing upon, and climbing up, on the side of cars, would come in contact with said water plug and strike against the same; that the defendant, knowing said water plug to be dangerous to its servants in working upon and climbing over its cars in passing said water plug, unlawfully and negligently, on said day, carelessly maintained said water plug in said dangerous position, and ordered and directed said Patrick J. Finney to go upon its freight train on said day, and work upon and brake upon the same, and did negligently direct the said Patrick J. Finney, who was then and there in the employ of the defendant as its brakeman on said train, to climb up and over and go upon the said train while passing by said water plug; that, [145 Ind. 553] in the careful, skillful discharge of his said duties as such employe, and to carefully and skillfully do his work and discharge his duties as such brakeman, he did, on said day, carefully, faithfully, and skillfully, and in obedience to defendant's orders, go upon said train and climb up and upon the side of said train in the faithful discharge of his duties as brakeman on said train, as the same passed said water plug, and, without any fault or negligence whatever on his part, his head, body, legs, and arms came in contact with and struck against said water plug, and the pipe, braces, and supports thereto attached, which then and there, crushed and mangled his arms, legs, body, and head and stunned and disabled him so that by reason thereof he was thrown to the ground upon the track of said railroad and between the cars in said train, and was run over by said train, and soon thereafter died from said injuries."

It is also alleged that the deceased, "did not know, nor remember, nor had he any reasonable opportunity of knowing or remembering, that said water plug and its pipes, braces, and supports thereto attached, were so near to the tracks of said railroad as to strike him while he was discharging his duty on said train, and because his mind was so absorbed in the discharge of his duties he did not, nor could not, know, or remember, that he was passing said plug, or that the same would strike him before he could climb up to and get upon the top of the train."

To this complaint the appellant filed an answer in denial, and a trial resulted, in the jury returning a general verdict for $ 5,000.00, with answers to interrogatories. Over appellant's motion for a new trial, which assigned, among other reasons, that the verdict was not supported by sufficient evidence, and that the [145 Ind. 554] same was contrary to law, judgment was rendered upon the verdict.

It is strenuously insisted by appellant's learned counsel, that the verdict of the jury is not supported by the evidence, and that the appellee has wholly failed thereunder to sustain his alleged cause of action.

The material facts in the case, established by the

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evidence, as favorably to the appellee as he can insist, and in part found by the jury in answers to interrogatories, may be summarized as follows: Appellee's decedent...

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