Pennsylvania Co. v. Finney

• Citation: 42 N.E. 816,145 Ind. 551
• Parties: PENNSYLVANIA CO v. FINNEY.
• Decision Date: 29 January 1896
• Court: Supreme Court of Indiana

145 Ind. 551

42 N.E. 816

PENNSYLVANIA CO

v.FINNEY.

Supreme Court of Indiana.

Jan. 29, 1896.

Appeal from superior court, Allen county; C. M. Dawson, Judge.

Action by Michael Finney, administrator, against the Pennsylvania Company, to recover damages for the killing of plaintiff's intestate, Patrick J. Finney, a brakeman in its employ. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Allen Zollars, for appellant. L. M. & H. W. Ninde, for appellee.

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 Pittsburg to Chicago, through Columbia City and Ft. Wayne, Ind.; “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 tracks 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 in the careful, skillful discharge of his said duties as such employé, 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, 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 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 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 was employed and entered the service of appellant in September, 1889, as a brakeman on its freight trains running over its road. At the time of his employment he was 22 years of age, and continued in the service of appellant until April 5, 1890,-the date of his death. The railroad company, at and before the time of the employment of the deceased, maintained water plugs or water cranes on its line of railway, for the purpose of supplying its trains with water, one of which was erected and maintained by it at Columbia City, Ind., which is a station on its line of railway. This latter crane was about 17 or 18 feet high, and was obvious to persons, and was in plain view, for a distance of one-half mile, to all persons operating the train upon which the decedent was braking at the time of the accident. Said plug stood about 4 feet and 3 1/2 inches from the railroad track; the upper part leaning about 8 inches towards the track, or, in other words, deviating about that much from a plumb line. The deceased had passed this plug, and had an opportunity of seeing the same, almost daily, in daylight, each month, for a period of five or six months immediately prior to his death. It was his duty, as a brakeman, it appears, when his train was passing a station, to go to the top of a car, and there remain until the station was passed, when he was then privileged, if he so desired, to descend, and go into the caboose attached to the train. On the forenoon of April 5, 1890, about 11 o'clock, the deceased was on the top of the train on which he was braking in the discharge of his duty, as it was passing the station of Columbia City, said train at the time running at the rate of about 15 miles an hour; and, when it was passing the yards of the appellant at this station, he, having discharged his duty, and being at liberty to descend and go into the caboose, and desiring so to do, when the train was about 200 feet west of the water crane, walked over the train to the rear end of the...