Louisville, N.A.&C.R. Co. v. Heck

• Decision Date: 17 June 1898
• Court: Indiana Supreme Court
• Parties: LOUISVILLE, N. A. & C. R. CO. v. HECK.

151 Ind. 292

50 N.E. 988

LOUISVILLE, N. A. & C. R. CO.

v.HECK.¹

Supreme Court of Indiana.

June 17, 1898.

Appeal from circuit court, Carroll county; T. F. Palmer, Judge.

Action by Abraham V. Heck, administrator, against the Louisville, New Albany & Chicago Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. C. Field, W. S. Kinnan, and Pollard & Pollard, for appellant. John H. Gould, M. A. Ryan, and Jas. A. Sims, for appellee.

McCABE, J.

The appellee, as administrator of one Aaron Heck, deceased, sued the appellant to recover damages under the statute for injuries resulting in the death of said deceased, as is alleged, by the negligence of the appellant. A trial of the issues made resulted in a special verdict, upon which the court rendered judgment for the plaintiff. The errors assigned, and not waived, call in question the sufficiency of the complaint, the action of the circuit court in overruling demurrers to each paragraph of the complaint, and in overruling appellant's motion for a new trial, and for judgment in its favor on the special verdict. The substance of so much of the special verdict as is material is as follows: The defendant, on and before July 6, 1891, was, and still is, a railroad corporation, owning and operating a railroad in this state, part of which is situated between and extends from the city of Lafayette, Tippecanoe county, and passing through Bloomington, Monroe county, both in Indiana. That about seven miles south of Lafayette there was at that time, and still is, a point called “Taylor's Station,” where there was no telegraph or freight office; but there was a side track or switch, not being a regular station for regular trains on said road. That about 13 1/2 miles south of Lafayette there then was, and still is, a station called “Romney,” at which there was a side track and telegraph office. That a place called “Raubs,” 10 miles, and a place called “Gravellotte,” 2 1/2 miles, south of Lafayette, were flag stations, with a side track at each, but no telegraph office, and that there was no telegraph office between Romney and Lafayette. That, on said day, the decedent, Aaron Heck, was, and for two years prior thereto had been, in the employ of defendant in the capacity of fireman on a pile driver, that being his avocation, the engineer thereof being one R. G. Fletcher. That said pile driver was composed of a fire engine, boiler, and other machinery resting on a fiat car, was used for driving timbers into the ground in the construction and repair of bridges on said railroad. That said piledriver car, with such other cars as were necessary, were taken from point to point over said railroad, as ordered by defendant, by a locomotive and tender, and the whole was called a “work train,” and the same was not operated on schedule time, but was always an extra, moving under special orders. On said day such work train was moved and propelled by engine No. 69, with one D. W. Myers as engineer, a fireman, and two brakemen, and S. C. Firth was conductor of said work train; and the said decedent and said Fletcher had no control or management of said work train. That, on and before said day, said railroad, for the purposes of its operation, was divided by defendant into two divisions, called the First and Second divisions, the First division consisting of that part between Lafayette and Michigan City, and between Indianapolis and Chicago. The Second division consisted of that part lying between Lafayette and New Albany, each division being in charge of a controlling officer of the defendant, called “division superintendent,” who represents the defendant company. There were subordinate employés of the defendant, all of whom were subject to the orders and control of the division superintendent. On and before said day, one James B. Safford was superintendent, and in charge of said Second division, and had his office in Lafayette. That said Safford, as such superintendent, had authority from defendant for making up and sending out trains over said Second division, and in that regard his authority was superior to that of any other of the employés of the defendant; and on that day he represented all movements of trains of said defendant company on said Second division. That, on that morning, said work train was made up at Lafayette under the orders of said James B. Safford, as superintendent of said Second division, consisting of a locomotive, tender, a flat car, said pile-driver car, and a caboose, and was ordered by said superintendent to work during that day, from 7 o'clock in the morning until 6 o'clock in the afternoon, between said Lafayette and said Romney. By usage and by the rules of the defendant, orders for the movements of all trains were issued to the conductor and engineer of each train. On said day, said work train was known and designated as “Engine No. 69”; being an extra train, and the order issued by said superintendent to the conductor and engineer of said work train on the morning of said day was as follows: “Supt. Office, Bloomington, July 6th, 1891. For Lafayette to C. & E. of engine 69. Engine 69 will work extra to-day, from 7 o'clock a. m. until 6 o'clock p. m., between Lafayette and Romney, protecting itself against all trains. J. B. S.” That by said order said work train was directed to leave Lafayette at 7 a. m. of said day, and be back to said city by 6 o'clock that evening. That between Lafayette and Romney said railroad was a single track, except at the way stations before mentioned, where there are side or passing tracks. Said work train left Lafayette at 7 a. m. of said day, under said orders, and worked on a bridge near Taylor's Station, and continued to so work until about 5 o'clock and 35 minutes in the afternoon, when it started on its return to Lafayette, running backward, or caboose end foremost, at a speed of about 12 miles an hour; and at a point about 1 1/2 miles north of said Taylor's Station, on a curve in said road, it met and collided with an extra freight train, which had been made up and sent southward over defendant's road, and over the working limits of said work train, under order of said superintendent, and which left Lafayette about 5 o'clock that afternoon. Said extra freight train was sent out under a written order from said superintendent to its conductor and engineer, of which the following is a copy: “Supt.'s Office, Bloomington, July 6th, 1891. For Lafayette to C. & E. of Eng. 97. Engine 97 run extra from Lafayette to Bloomington, and will meet number 44, engine 34, at Linden. J. B. S.” That the initial letters “J. B. S.,” subscribed to each of said orders to said work train and to said extra freight train, were the initials of the name of said James B. Safford, and signified his name, and were so known, understood, respected, and obeyed by the conductors and engineers of said trains. No other orders were given to said work train or said extra freight train than above stated, nor was notice given to said work train that an extra freight train would be or had been sent south over its working limits, nor did the conductor or any one on said work train know that said extra freight train was coming or was on the road. Neither the conductor nor any one on the extra freight train had been notified by the defendant or by said superintendent that the work train was on the road, nor had they been by the defendant or said superintendent advised of the working limits of said work train. There was a rule of the defendant company, then in force, hereinafter set out, requiring that notice should have been given by the defendant to said extra freight train of the presence of said work train on the track, within said working limits, but such notice was not in this case given. Under the order given to said work train, those in charge of it did protect it against all regular or schedule trains. The work train was running at a proper rate of speed, and the conductor and a brakeman thereof, as watchmen or lookouts, were on the forward end of the train as it ran northward and homeward, as required by appellant's rules. And that the engineer, conductor, and trainmen, in the management of extra freight No. 97, were on said day, at the time of said collision, acting strictly under the orders of the defendant. That under defendant's rule 105, hereinafter set out, it was impossible for the crew in charge of said work train to protect itself against said extra freight train, and at the same time return to Lafayette by 6 o'clock, as was required of it. The said rule 105 was applicable to trains stopped by accident or obstructions, and was impracticable in its application to said work train at the time of said collision, because of said orders and necessity of proceeding to Lafayette on its return from Taylor's Station. That defendant, through its superintendent or otherwise, did not take any steps to give notice to those in charge of either train of the presence of the other on the line of said road. The collision occurred about 5 o'clock and 45 minutes in the afternoon of said day; and, the ground being hilly, the view of the approaching trains was obstructed so that the extra freight train could not be seen from the work train until said trains were within 15 car lengths of each other; and the same was true as to the view from the freight, so that the men operating each train could not, after coming in view of each other, avoid the collision. At the time of said collision, the said Aaron Heck was at his proper place with said pile-driver engine on said pile-driver car, when said trains collided with great force, throwing some of the cars, including the said pile-driver car, from the track into the ditch, instantly killing said Aaron Heck. On and prior to said day, the defendant had in force the following rules and regulations for the government and control of its employés, including the movement and running of its trains....