Chicago, I.&L. Ry. Co. v. Sanders
| Decision Date | 09 December 1908 |
| Docket Number | No. 6,572.,6,572. |
| Citation | 86 N.E. 430,42 Ind.App. 585 |
| Court | Indiana Appellate Court |
| Parties | CHICAGO, I. & L. RY. CO. v. SANDERS. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Orange County; Thos. B. Buskirk, Judge.
Action by John Sanders against the Chicago, Indianapolis & Louisville Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.
E. C. Field and H. R. Kurrie, for appellant. Hottel, Cauble & Hottel, for appellee.
Action for recovery of damages by appellee, who was in appellant's service as a sectionman, on account of injuries received by him in leaving a moving train in obedience to the order of the section foreman. The case was tried without a jury, a special finding of facts made, with conclusions of law, and judgment thereon for $1,000. The finding of fact shows that appellee went along appellant's railway and did certain work under the order of the foreman, and was by him ordered to get upon a designated train with the rest of the section gang to return home; that, when the train neared Norris, the place where the sectionmen were to get off, the conductor asked the foreman if he must stop the train to let the men off. The foreman said, “No; we will get off,” saying “Get off, boys.” At this time the train was running six or eight miles an hour. In obedience to said order, the sectionmen, including appellee and the foreman, got off the train. The appellee came in contact with a stone wall built to protect the grade from the flow of water, and was injured. It was found that appellee did not know the condition of the right of way, that the order given by the foreman was negligent, that the injury to appellee was caused thereby, and that he was in the exercise of care.
Whether the order to leave the moving train was or was not negligent under all the circumstances was a question of fact. Harris v. Pittsburg, etc., R. Co., 32 Ind. App. 600, 602, 70 N. E. 407. Whether appellee in obeying it was or was not negligent was also a question of fact. Pittsburg, etc., R. Co. v. Miller, 33 Ind. App. 128, 70 N. E. 1006. Both of these issues are found against appellant. In other words, it is found that the foreman was negligent in giving the order, and that the employé was not negligent in obeying it. Some ground of distinction is furnished by the further findings to the effect that the foreman was, and the appellee was not, familiar with the conditions. The conclusions of law upon facts which show such a...
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