Indiana, I.&I.R. Co. v. Bundy

• Decision Date: 09 March 1899
• Parties: INDIANA, I. & I. R. CO. v. BUNDY.
• Court: Indiana Supreme Court

152 Ind. 590

53 N.E. 175

INDIANA, I. & I. R. CO.

v.BUNDY.¹

Supreme Court of Indiana.

March 9, 1899.

Appeal from circuit court, Lake county; J. H. Gillett, Judge.

Action by Harris Bundy against the Indiana, Illinois & Iowa Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

F. S. Fancher and H. K. Wheeler, for appellant. E. D. Crumpacker and Grant Crumpacker, for appellee.

HADLEY, J.

The evidence discloses that the appellant owned and operated a railroad extending from Streator, Ill., to Knox, Ind., and in connection therewith operated a leased line from Wheatfield, Ind., a station on their main line, to North Buffalo, Mich. Appellee, who was plaintiff below, went into the employment of appellant in December, 1891, as a brakeman on a freight train, and continued in the same capacity till December 22, 1894, when, while attempting to couple cars in the switch yard at North Judson, Ind., he fell over uncovered signal wires along the track, and his arm was caught between the deadwoods and was crushed. North Judson is a station at which appellant's road, running east and west, is crossed by the Erie and Panhandle Railways, running north and south, which three companies maintain at North Judson an interlocking switch device. The east signals on appellant's road are operated by two wires, less in size than telegraph wire, running eastward from the crossing on the south side of appellant's main track, 300 feet, to the derail. They at that point cross under the track to the north side, and thence extend eastward, parallel with, and 42 inches from, the north rail of the main track, 1,200 feet, to the distant signal. These wires are boxed from the crossing to the derail. From that point eastward to the distant signal they are uncovered, and rest upon pulleys set in the tops of posts, 3 inches from the ground, and about 40 feet apart. The ground over which the wires run is sandy. The operating wires are similarly constructed west of the crossing, except that on the west the wires are boxed for a distance of 360 feet. The appellant, among others, maintains a side track south of its main track, east of the crossing, which extends to the eastward about 700 feet east of the distant signal, and, west of the crossing, a side track on the north side of its main track, extending westward about half a mile, and about 1,000 feet west of the west distant signal. The Erie maintains “yards” on the east of the crossing, and the Panhandle “yards” are on the west of the crossing, and north of appellant's tracks. The interchange of cars among these roads was so considerable as to make it necessary for appellant to maintain at this point a switch engine, and a switching force of five men, including engineer and fireman. This switching crew performed all the switching at this point. It would collect the cars from the yards of the other two companies, and place them in train order,-those to go west on appellant's side track above described west of the crossing, and those to go east on the side track east of the crossing,-to be taken out by appellant's through freight trains from the west and east ends, respectively, of said side tracks. Soon after appellee's employment, in 1891, appellant constructed interlocking switches at Dwight and Momence, Ill., and in September, 1892, constructed the one at North Judson, and also had a similar device at Magee and Laporte, on the New Buffalo Branch. At these several points the wires from the derail to the distant signals were uncovered, and constructed in a manner similar to the one at North Judson. At Dwight the exposed wires were on the south side of the main track, and from a siding on the opposite side of the main track appellee had frequently coupled cars to his train, performing the work from each side of the side track, but usually from the north side. At the other points where interlocking systems were maintained, except North Judson, no switching or coupling or uncoupling of cars was done in the vicinity of the exposed wires. For a period of two years after the construction of the interlocking systems, and next before the accident, appellee made from two to four trips a week over the road; two-thirds of the trips being from Streator to New Buffalo, and one-third to Knox, via North Judson, passing the latter place 25 or 30 times in daylight. His station in travel was on top of the train, or in the cupola of the caboose. The outside walls of the freight cars projected 2 1/2 feet outside the rails. Appellee was occasionally on the station platform at North Judson in daylight, but never walked on the ground along any part of the uncovered wires to reach the platform. The wires operating the switch and signals are boxed for 300 feet eastward from the station platform, and 360 feet westward. Six days before the injury, appellant had opened an extension of its road to South Bend, and discontinued and removed its switching crew from North Judson, thus imposing upon train crews the duty of switching and picking up cars at the latter place. Appellee was returning from his third trip to South Bend, and at 12:30 o'clock a. m. was called upon to couple a car to his train at a point from 325 to 340 feet east of the crossing. It was dark, and appellee had in his hand a lighted lantern, with which he twice signaled the engineer to back slowly, and, being occupied in observing the movement of the train, at the proper moment attempted to step in and make the coupling, but lodged his foot under the open wires, and, falling towards the train, threw himself forward in an effort to reach the deadwoods, to avoid falling across the rail; and thus his arm was caught between the deadwoods and crushed, making amputation above the elbow necessary. This was appellant's first attempt at coupling or uncoupling cars in that vicinity, or east of the crossing. He had never seen the open wires at that station. He had never been informed that they were open. He did not know they were open, and did believe they were all boxed, at that crossing. No objection to this complaint is urged by appellant, and the questions discussed all arise under the motion for a new trial. The negligence charged against the appellant is in maintaining the wires along the side of its road in an uncovered and exposed condition, at a point where its employés are required to go in to couple and uncouple cars. The insufficiency of the evidence to sustain the judgment below is urged by appellant.

It is a familiar rule that railroad companies are required to construct their roadways and appurtenances in such a manner as will enable their employés to perform the labor required of them with reasonable safety. Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. 770; Same v. Wright, 115 Ind. 378, 385, 16 N. E. 145, and 17 N. E. 584. This rule requires a railroad company, in any structure erected by it, to have regard for the safety of its employés while engaged in discharging their duties in relation thereto. The environments of the situation, the nature and extent of the services required of its employés, must have potent consideration, and such structure accomplished in a manner that has in view the highest degree of safety that ordinary care will provide. The appellant is excused if it maintains its roadway and appendages in a fashion generally approved and adopted by other first-class railroads of the country. But in this case the evidence tends to show that, while the general mode of constructing interlocking switch devices is to leave the wires uncovered from the derail to the distant signals, yet it also tends to prove that in switch yards, and places where a large amount of car handling is required, the generally approved and usual method of first-class roads is to box the wires at such places. Without any doubt, the evidence is of a character to carry to the jury the question of appellant's negligence in maintaining uncovered wires at the place of appellee's injury.

Appellant further insists that, aside from the question of its negligence with respect to the open wires, there can be no recovery, for the reason that the danger, whatever it was, was apparent and known to appellee, and assumed by him, in his continued voluntary service with the company. It is a well-established rule that one entering the service of a railroad company must do so with his eyes open, for he will be held to assume all the usual and obvious dangers incident to the employment. He must heed appearances and note consequences, and if, by his carelessness, he overlooks that which he might have observed by the exercise of ordinary care, his want of knowledge will be no excuse in case of injury. Coal Co. v. Hoodlet, 129 Ind. 327, 27 N. E. 741;Railway Co. v. Buck, 116 Ind. 566, 573, 19 N. E. 453;Railway Co. v. Roesch, 126 Ind. 445, 447, 26 N. E. 171; Same v. Lang, 118 Ind. 579, 583, 21 N. E. 317. But, while the employé is thus held to diligence for his own safety, he has the right to repose confidence in the prudence and caution of his employer, and may rightfully presume that the employer, with respect to the same object, has performed his duty, and has invested all places and situations with such safeguards as ordinary prudence requires. Railroad Co. v. Rowan, 104 Ind. 88, 3 N. E. 627;Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. 380; Railroad Co. v. Duel, 134 Ind. 156, 33 N. E. 355, and cases cited. The evidence adduced is not of a character to warrant this court in saying, as a matter of law, that the risk of the open wires was assumed by appellee. There was evidence that there were two light-colored wires, “less than telegraph wires,” drawn over, and four inches above, a sandy roadbed. Appellee was a rear-end brakeman on a through freight train, and his post of duty in travel was on top of his train, or in the cupola of the caboose. The line of wires was 12 inches out from the outer walls of the moving freight cars, and not observable...