Chicago, I.&L. Ry. Co. v. Stierwalt, 12400.

Decision Date27 October 1926
Docket NumberNo. 12400.,12400.
Citation153 N.E. 807,87 Ind.App. 478
PartiesCHICAGO, I. & L. RY. CO. v. STIERWALT.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Monroe Circuit Court; Herbert A. Rundall, Judge.

Action by Aven H. Stierwalt against the Chicago, Indianapolis & Louisville Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. C. Hine and Alfred Evens, both of Chicago, Ill., and George W. Henley, of Bloomington, for appellant.

Davis & Michel, of Minneapolis, Minn., and Miers & Corr, of Bloomington, for appellee.

McMAHAN, P. J.

This is an action for damages under the federal Employers' Liability Act (Comp. St. § 8657 et seq.), alleging injuries to the person of appellee while employed by appellant as a brakeman on one of appellant's trains at Clear Creek, Ind., January 22, 1923. The complaint is in a single paragraph, but contains two charges of alleged negligence: First, the use by appellant of a car, the coupler and coupling apparatus of which was “broken, defective, and inoperative, and in such condition that said car could not be coupled onto an adjoining car without the necessity of some one going between the ends of said cars,” in violation of the federal Safety Appliance Act (Comp. St. § 8605 et seq.); and, second, that appellant negligently, in violation of its custom and duty to move the engine and cars under the circumstances outlined in the complaint, only in response to a signal or order of appellee, in violation of said custom and duty, caused the cars to be set in motion and run onto and against appellee, injuring him so that it was necessary to amputate each of his legs between the knee and ankle. The case was tried by a jury, and resulted in a general verdict and judgment in favor of appellee for $42,000.

Appellant urges as reasons for reversal: (1) That the verdict is not sustained by sufficient evidence; (2) excessive damages; (3) the giving of certain instructions; and (4) misconduct on the part of the bailiff in charge of the jury.

[1] The evidence is sufficient to establish the following facts: Appellant operated out of its McDoel yards at Bloomington, Ind., a train known as the “stone train,” on which appellee was working on the day he was injured. This train started from the McDoel yards in the morning, taking out of McDoel certain cars to be distributed to various industries in the Bloomington stone district. At Clear Creek, about two miles south of the McDoel yards, appellant's railroad divides; the east branch being known as the Smithville branch, and the west branch as the Indiana stone road. Upon arriving at Clear Creek, the train crew set out the cars which were destined to industries on the Indiana stone road, leaving them on a side track, and took those cars which were destined to industries on the Smithville line, and proceeded three miles south to Sanders, which was the southernmost point made by this train on the Smithville branch. Beginning at Sanders, it worked back north toward Clear Creek, working the various stone quarries and stone mills located on the Smithville branch, delivering to them such cars as were destined to these quarries and mills, and picking up such cars as were ready to be hauled out. The cars picked up on the Smithville branch were returned to Clear Creek, placed on a siding, and left standing there while the train worked the quarries located on the Indiana stone road. The train picked up the cars destined to industries on the Indiana stone road, and proceeded to Quarry No. 17, 5 miles south of Clear Creek, and which was the point farthest south made by this train on the Indiana stone road. Beginning with Quarry No. 17, the train then worked back toward Clear Creek, delivering cars to the various stone mills and quarries. On the south-bound trip from Clear Creek to Quarry No. 17, this train set out on a switch known as the national switch, and located, about 2 miles south of Clear Creek, two cars of stone which were destined to the Woolrey Mill, located on the national switch. As the train worked back north on the Indiana stone road, it approached the national switch from the south, carrying seven cars and the caboose. One of these cars was loaded with stone, to be shipped and delivered to a point in Kentucky. The train was stopped on the main line, at a point opposite, or a little south of, the derail or clearance point of the national switch, which derail or clearance point was 148 feet south of the switch points and the switch stand. At this point the engine was cut off from the train by appellee, and the seven cars and caboose left standing on the main track while the engine went in to pick up the two carloads of stone which had been set on the national switch on the way down. Appellant's track at this point consisted of a main track on a slight curve to the right, as one faces north, with the national switch running off to the southeast from the main track. The switch points and switch stand are directly opposite each other; the switch points being east of the switch stand. There was a frog 81 feet south of the switch stand. Thirteen feet west of the main track there was a post which was 44 1/2 feet south of the switch stand and switch points. When the train was brought to a stop, opposite or a little south of the derail and clearance point, appellee cut off the engine from the cars and caboose, signalled the engineer to move forward. The engineer moved forward over the switch points. Appellee then signalled for the engineer to stop, which he did. Appellee crossed over from the east side of the track to the west side of the track, threw the switch, and signalled the engineer to back the engine, which the engineer did. They coupled onto the two cars on the national switch, when in response to a signal from appellee the engineer proceeded with the engine and the two cars over the switch points a second time, and on a signal from appellee stopped the two cars at a point where the rear end of the two cars was north of the switch points. Appellee crossed over the track from the east side to the west side, and threw the switch. At this point there is a conflict in the evidence. The engineer testified that appellee, after throwing the switch a second time, signalled for him to back up. Appellee testified that he did not give this signal, but that he walked up the track to the end of the south car, and attempted to open the knuckle of the coupler by means of the lift lever; that he tried two or three times with one hand, and then with both hands, and it would not work; that he stepped in to fix it, and just as he got in there the car started back on him.

Appellant, in support of its first contention, says there is no evidence that the coupler was broken, or that it was defective either in type or construction; that the only evidence which would tend to indicate any defect in the coupler was the testimony of appellee to the effect that he attempted to raise it up with the pin lever, and that it would not work; that against this evidence there was the testimony of three members of the train crew that they examined the coupler and worked the pin lever; that the coupler was not in any way defective; and that without any change being made in the coupler the cars did later couple by impact.

Appellee, in describing the coupler and the circumstances surrounding the injury, testified that the coupler was situated in the center of the end of the car; that there was a lift lever or rod of iron running from the center of the car to within 8 or 9 inches of the side of the car, and crooked down at the end of the rod; that, when the knuckles were closed, one raised up on the lever to open the knuckles, and, if the coupler was in proper working order, the knuckles opened when one lifted upon the lever. If the coupler was working properly, one ordinary pull would open the knuckle. When the knuckles on two cars are both closed, the cars cannot be coupled, but, if one knuckle is open, they can be coupled, even if the other knuckle is closed. When the coupling had been made with the cars on the switch track, he signalled to go ahead on the main track, and got on the back car as the engine and cars pulled north over the switch, and when they got a little north of the switch he signalled to stop, and, when the engine stopped, he crossed the track and threw the switch, and lined up the main track, after which he stepped up to the rear car which the engine had hold of and tried to open the knuckle; took hold of the pin lever and lifted on it two or three times with one hand, and it would not raise. Then he took hold of it with both hands and jerked up, but it would not lift. He then stepped in to fix it, to see what was the matter with it, and just as he got in there the car started to back on him. He tried to get out of the way, but got run over. That he did not give a signal to back up before stepping in to fix the coupler, and did not have any notice or warning that the engine was going to back up. In trying to open the coupler pulled harder than usual, because it would not open, tried to get out of the way when the car started to back, but did not have time, and fell down over something, and was run over. That a coupler that is in good serviceable order would open with one lift of the lifting rod. That the engine came back faster than he could get out of the way.

Stephen Lush testified that he had formerly been employed as brakeman and conductor, and from his experience knew how couplers should operate; that, if a coupler was in proper working condition, one ordinary pull of the lift rod would open it; that he would not consider a lift rod and coupler which would require two or three efforts to manipulate in proper condition. If a coupler was in proper condition, one pull was all that was necessary. If it did not open with one effort, something was wrong.

Damon Floyd, a witness for appellant, testified that at the time of the accident he was...

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