Chicago Terminal Transfer Railroad Company v. Vandenberg

• Citation: 73 N.E. 990,164 Ind. 470
• Decision Date: 07 April 1905
• Docket Number: 20,316
• Parties: Chicago Terminal Transfer Railroad Company v. Vandenberg et al
• Court: Indiana Supreme Court

73 N.E. 990

164 Ind. 470

Chicago Terminal Transfer Railroad Company v. Vandenberg et al

No. 20,316

Supreme Court of Indiana

April 7, 1905

From Porter Superior Court; Harry B. Tuthill, Judge.

Action by George Vandenberg against the Chicago Terminal Transfer Railroad Company and another. From a judgment on a verdict for plaintiff against such transfer company, it appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

Jesse B. Barton and John B. Peterson, for appellant.

Whinery & Bomberger, for appellee Vandenberg.

Jordan J. Gillett, J., did not participate.

OPINION

Jordan, J.

Action by appellee Vandenberg to recover damages for personal injuries. The suit was originally commenced in the Lake Superior Court against appellant as the sole defendant. Subsequently an amended complaint was filed impleading the Chicago Junction Railroad Company, with appellant, as a codefendant. The latter party has been made a co-appellee in this appeal. On motion the cause was venued to the Porter Superior Court. Appellant separately demurred to the amended complaint, which was overruled, and a proper exception reserved. Its answer to the complaint was the general denial. Trial by jury, and at the close of appellee Vandenberg's evidence appellant unsuccessfully moved the court to direct a verdict in its favor. At the close of all of the evidence this motion was renewed with a like result. A general verdict was returned by the jury, finding in favor of appellee Vandenberg against appellant, and assessing his damages at $ 5,000. There was a finding by the jury in favor of the Chicago Junction Railroad Company. Along with the general verdict answers were returned to a series of interrogatories. Over appellant's motion for a new trial judgment was rendered against it upon the verdict. The errors assigned are (1) overruling the demurrer to the amended complaint, (2) denying the motion for a new trial.

The amended complaint may be summarized as follows: On October 5, 1901, appellant and its codefendant the Chicago Junction Railroad Company were each railroad corporations organized under and pursuant to the laws of the state of Illinois. Appellant at the aforesaid date was operating in said state of Illinois a belt or freight railroad, which extended across the state line into the State of Indiana. Its principal business was handling, switching and transferring freight and freight-cars from the tracks of other railroads with which it connected. The Chicago Junction Railroad Company was on the same date operating a belt or freight railroad in said state of Illinois, which also extended across the state line into the State of Indiana, and the principal business of this railroad company was the handling switching and transferring of freight and freight-cars from the tracks of other roads with which it was connected. Prior to said 5th day of October, appellant and its codefendant the Chicago Junction Railroad Company had entered into a traffic arrangement and contract with each other, by the terms of which the said Chicago Junction Railroad Company was permitted and authorized to use the tracks, side-tracks, switches and spurs of appellant's railroad, and to run its trains thereover. Said traffic arrangement was in full force and effect on October 5, 1901. On the aforesaid date the appellee Harry G. Vandenberg was a brakeman in the employ of the Chicago Junction Railroad Company, and while in the discharge of his duties as such brakeman of said railroad company he was with the train crew, of which he was a member, engaged in hauling a train of freight-cars over the tracks of appellant Chicago Terminal Transfer Railroad Company, and that said train consisted of an engine and forty-four cars. The appellee Vandenberg was riding with the engineer of said train in the cab of the engine which was propelling said train, as was necessary, over the tracks of the Chicago Terminal Transfer Railroad Company from McCook, Illinois, to Blue Island, Illinois. On the aforesaid date the crew of said train, of which plaintiff was a member, had orders from the proper officers of said Chicago Junction Railroad Company, and permission under the terms of said traffic arrangement, to run said train over the tracks of the Chicago Terminal Transfer Railroad Company from McCook, Illinois, to Blue Island, Illinois, and was so engaged at the time of the accident hereinafter mentioned. A switch known as "Trumbull switch" was, on said 5th day of October, situated on appellant's road between McCook and Blue Island in said state of Illinois. It was necessary for the engine and train upon which plaintiff was riding to pass this switch in going from McCook to Blue Island. The defendants, and each of them, had carelessly and negligently failed to keep said switch, switch-stand and side-track in safe and proper condition and repair so that plaintiff might use and pass the same without injury. Said defendants had negligently and carelessly permitted said switch to remain partially open and unlocked, so that the side-track and tracks leading thereto were not in a proper position with reference to said main track. Defendants had negligently and carelessly failed and neglected to lock said switch and switch-stand, so as to place and hold the side-track in proper position with reference to the main track, so that the train might pass said switch safely and without accident, and without injury to the crew thereof. When said train on which plaintiff was riding reached said switch it was running at the rate of twenty-five miles an hour. The position of the target of said switch indicated that it was closed as the train approached, but as a matter of fact, by reason of the negligence of the defendants hereinbefore set forth, said switch was not entirely closed, and was not locked, and neither the plaintiff, nor the engineer in charge of said train, nor any member of said crew, discovered, nor could they by the exercise of due diligence have discovered, that said switch was not closed, until said engine was within twenty-five feet of the same, when they then and there discovered that the switch point appeared to be bent and slightly open. The engineer made immediate and diligent effort to stop the train, but was unable to do so until too late to avoid the accident which followed. The accident was not due to any carelessness or negligence of the plaintiff, or of any other member of said train crew, or any co-employe of plaintiff. The engine in question struck said switch and switch point, and it, together with said train, was, by reason of the carelessness and negligence of the defendants, and each of them, in leaving the switch partially open as hereinbefore alleged, then and there thrown from the track and derailed, and plaintiff was then and thereby caught in the wreck of said engine and cars, and was thereby badly cut, bruised, maimed, wounded and scalded, and by reason of said injuries his left leg had to be amputated. His right leg was badly torn, and he was burned and scalded upon his sides and whole body. His right leg was rendered permanently stiff, and he has suffered, and still suffers, great pain of body and anguish of mind, and is permanently disabled and rendered unable to work, and has expended large sums of money for doctors, nurses and medicine, to wit, the sum of $ 500. At the time of said accident plaintiff had been in the employ of the Chicago Junction Railroad Company only three days, and had passed over the road only once before, and was unfamiliar therewith. Said accident occurred without any fault, negligence or carelessness of the plaintiff, but occurred through the negligence and carelessness of the defendants and each of them, as hereinbefore set forth, without any carelessness, negligence or fault on the part of any member of the crew to which plaintiff belonged, and without the fault or negligence of any co-employe of plaintiff. Neither plaintiff nor any member of the crew to which he belonged had any notice, knowledge or warning of the fact that said switch had been left open and unlocked, as aforesaid charged.

Under the facts alleged in the complaint the proximate cause of the accident by which plaintiff was injured is attributed to the negligence of each of the defendants in the action below. The negligence in question apparently is not charged jointly against the defendants, but against each of them, hence, under the circumstances, the complaint may be viewed and treated as though appellant was the sole defendant in the action. Therefore, if it can be said that under the facts the complaint discloses a cause of action against appellant, then it has no grounds for complaining of the action of the court in overruling its separate demurrer. Holzman v. Hibben (1885), 100 Ind. 338; Rector v. Shirk (1883), 92 Ind. 31.

Where two or more defendants demur to a complaint for insufficiency of facts, if the pleading is good as to any one of said defendants, the demurrer should be overruled. As a general rule, where a defendant separately demurs, as did appellant if the complaint is sufficient in facts as to him, the demurrer is properly overruled. The facts averred show that plaintiff, when injured, was the servant, not of appellant, but of the Chicago Junction Railroad Company. The two railroad companies, it appears, had entered into a traffic arrangement or agreement with each other, under the terms of which each company had the right and permission to run and operate its trains and cars, and to do switching, over the tracks, side-tracks and switches of the other company. At the time of the accident in question, plaintiff, along with other employes of said Chicago Junction Railroad Company, was engaged in the line of his duty as...