Chicago, I.&L. Ry. Co. v. Martin

• Decision Date: 10 December 1902
• Court: Indiana Appellate Court
• Parties: CHICAGO, I. & L. RY. CO. et al. v. MARTIN.

31 Ind.App. 308

65 N.E. 591

CHICAGO, I. & L. RY. CO. et al.

v.MARTIN.¹

Appellate Court of Indiana, Division No. 2.

Dec. 10, 1902.

Appeal from circuit court, Greene county; W. W. Moffett, Judge.

Action by Marilda A. Martin, administratrix of John R. Martin, deceased, against the Chicago, Indianapolis & Louisville Railway Company and the Perry-Mathews-Buskirk Stone Company. From a judgment for plaintiff against both defendants, they appeal. Affirmed as to the Perry-Mathews-Buskirk Stone Company, and reversed as to the Railway Company.E. C. Field, W. S. Kinnan, and W. V. Moffett, for appellants. S. B. Lowe and East & East, for appellee.

ROBY, C.

Marilda Martin, administratrix of the estate of John R. Martin, deceased, filed her complaint in the Greene circuit court against the Chicago, Indianapolis & Louisville Railway Company and the Perry-Mathews-Buskirk Stone Company, averring therein that her decedent's death was caused by the negligence of the defendants, whereby his next of kin were damaged in the sum of $10,000, for which she asked judgment. A general verdict was returned aginst both defendants for $4,000, together with answers to interrogatories. A motion for judgment notwithstanding the general verdict and for a new trial was made by each defendant, and overruled by the court. Judgment was rendered upon the general verdict, from which this appeal was taken, and errors separately assigned, calling in question the action of the court in ruling upon said motions.

The jury were carefully instructed upon the theory that the duty of the appellant stone company toward decedent was that of a master to its servant, and that the duty of the appellant railway company toward him was to exercise due care in view of the known conditions. The evidence establishes, without conflict, that the appellant stone company at the time of decedent's death was operating a stone quarry; that he was in its employment, being engaged in scabbling stones (trimming rough blocks of stone with a pick or chisel, preparatory to finer dressing). He was under no contract relation with the appellant railway company, and it had no interest in the stone quarry or its operation; its connection therewith being confined to the transportation, as a common carrier, of stone from the quarry to various points, as directed by the stone company. It owned and operated certain switch tracks in the quarry, connected with its main line of railroad by a main switch, which was about three-quarters of a mile long. It operated trains to and from its main line; employing its own men, and having exclusive control over them. On the morning of the accident the employés of the railway company had taken out two cuts, of four cars each, from the switch tracks, and placed them, coupled together temporarily, on the main switch track, for the purpose of making up a train for outshipment. The main switch on which they were placed stood on a steep down grade. The eight cars thus placed were equipped with good brakes, which were firmly set by the employés of the railway company when the cars were placed on the track. These employés or trainmen then ran their locomotive from the main switch track to one of the other side tracks, gathering up a cut of four more cars, and backing them down to the main switch, to be coupled to the eight already standing there. The locomotive was moved down to make this last coupling at an estimated speed of 1 1/4 miles per hour, and as it approached the eight cars already on the main switch the bell thereon was rung. Further notice of its approach was given by calling, “Heads up,” which was a term used to convey warning of its approach. The cars between which the coupling was attempted were new cars, equipped with “Trojan couplers,” such as are in general use. The couplers were in good repair, and were properly adjusted by the brakeman. Had the coupling been made, there was no danger of the cars moving down the steep grade. The coupling, for some reason not shown, failed to make, and the eight cars ran down the grade; starting very slowly, but moving constantly with accelerated speed. It is shown that a number of men, including decedent, employed by the stone company, had come over from other tracks where they had been scabbling stone, in order to finish some uncompleted scabbling on the stone loaded upon these cars. They did so in obedience to the order of the foreman under whom they were working. The scabbling was largely done after the stone had been placed on the cars. Certain side tracks were known as “hold-overs,” and the work was ordinarily done while the cars were standing on them; they having been covered to protect the men from the weather while so engaged. The stone company had been in the habit theretofore of sending men out to the cars standing on the main switch to complete the scabbling of stone while the cars were temporarily standing there. Decedent had worked on one of these tracks until his car was transferred to the main switch aforesaid, when he walked across the intervening space, and resumed work on the south side of the car standing on the main switch. Near where he was thus engaged, an embankment of loose spalls, 6 or 8 feet high, had been placed in proximity to the track. On the opposite side there was nothing to prevent decedent from safely alighting from the car. Farther on, piles of great stone had been made on both sides of the track, barely leaving room for the cars to pass between them, and extending 30 feet above it. The train was being made up, and the car upon which decedent was working was taken from the hold-over track at the instance of the stone company. It was responsible for the condition of the embankment and the yard. The coming together of the cars set the eight cars in motion, and the decedent jumped off on the south side. When he struck the loose spalls, he slid down so that the wheels of the moving cars ran over and killed him. The other men alighted on the north side without injury. Decedent was working on the second car from the point of coupling, with his face to the engine. The stone upon which he was working was a large one,-higher than his head. The wheels of the cars were not blocked. Cars not equipped with good brakes, when left upon the main switch, needed to be blocked. Otherwise blocking them tended to interfere with the work of the railroad company, by causing the wheels to leave the track when the train moved back. In the absence of such blocking the jury were authorized to find, as the general verdict does find, that the place was not reasonably safe for the use to which it was put by the stone company.

It is earnestly insisted that the appellee, having alleged joint negligence, can only recover upon proof of joint management and control by appellants of the cars and quarry. The general proposition is that a party must recover according to the allegations of his complaint, or not at all, but under our statute it is not material whether a joint or several liability is alleged; the right of recovery in this respect being regulated by proof, and not by allegations of the complaint. Railroad Co. v. Treadway, 143 Ind. 689, 40 N. E. 807. 41 N. E. 794.

Whether decedent was guilty of negligence in leaping as he did depended upon the circumstances in view of which he acted. It does not appear that any injury would have been suffered had he remained upon the car. It is in evidence that the scabbling boss joined with others in calling to the men that: “The cars are running away. Everybody off.” It is also shown that the men all did leave safely, except decedent, who was thrown upon the track by the loose spalls accumulated in the yard. The rate of speed at which the train was moving was not so great as to preclude him from alighting safely, and while he might have crossed the car, and found secure footing on the north side of the track, yet, his failure to so do is not to be viewed from the standpoint of a disinterested critic after the event, but from the standpoint then occupied by him. So viewed, the verdict finding him free from contributory fault cannot be said to be unsupported by the evidence. The legal proposition involved is not in doubt. “The inquiry in such a case always is, did the negligence of the defendant put the injured person to the choice of adopting the alternative of an attempt to escape, or to remain under an apparently well-grounded apprehension of serious personal injury? Did he act with ordinary prudence, considering all the circumstances which surrounded him, or was his injury the result of rash apprehension of danger which did not exist?” Woolery v. Railway Co., 107 Ind. 381, 389, 8 N. E. 226, 57 Am. Rep. 114.

It is further contended that the conditions making the place where decedent was directed to work dangerous were open and obvious, and therefore assumed by him. The master's duty is to provide the servant with a safe place in which to work. The servant has the right to assume that such duty has been discharged. He cannot, of course, act upon such assumption as against the evidence of his own senses. Whether decedent knew or ought to have known the danger to which he was subjected was a question of fact. Whether the absence of and the necessity for blocking under the wheels was or should have been known to him was also a question of fact. The exigency which required work to be done on cars while being made into a train would not seem to contemplate that each individual employé should take time to examine all the wheels of the eight cars, to ascertain if a sufficient number of them were properly blocked, or to inspect the brakes thereon; and it cannot be said, as a matter of law, that the decedent might not properly rely upon the master's having discharged his duty in regard to them. Mere knowledge of the existence of the risk does not in all cases raise the presumption that the servant has agreed to assume it. City of Ft. Wayne v. Christie...