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

• Decision Date: 09 October 1903
• Parties: CHICAGO, I. & L. RY. CO. v. BARNES.
• Court: Indiana Supreme Court

68 N.E. 166

CHICAGO, I. & L. RY. CO.

v.BARNES.¹

Supreme Court of Indiana.

Oct. 9, 1903.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by Lucinda Barnes, administratrix, against the Chicago, Indianapolis & Louisville Railway Company. Judgment for plaintiff, and defendant appeals. Case transferred from the Appellate Court under section 1337u, Burns' Rev. St. 1901. Affirmed.

E. C. Field and W. S. Kinnan, for appellant. Whittington & Whittington, for appellee.

JORDAN, J.

Action by appellee against appellant for the negligent killing of her decedent. Trial by jury, and a general verdict awarding damages in the sum of $2,500, together with answers to numerous interrogatories, returned. Over motions by appellant for judgment on the answers to the interrogatories and for a new trial, judgment was rendered on the general verdict. The errors assigned relate to the overruling of the demurrer to each paragraph of the complaint, and to the overruling of the above-mentioned motions.

The complaint appears to have been unskillfully drafted, and abounds in repetition. We have, to an extent, summarized the first paragraph of the complaint, and gathered therefrom the following facts: Appellee is the administratrix of George E. Coombs, deceased, and appellant is a railroad corporation duly organized, operating and controlling a railroad running through the state of Indiana, which, among others, runs through the counties of Montgomery and Monroe. On and prior to the 2d day of December, 1899, Coombs, the decedent, was in the employ of appellant as a brakeman, serving it as such on one of its freight trains which ran over its said railway. Immediately beyond the corporate limits of the city of Bloomington, in Monroe county, Ind., appellant on and previous to the aforesaid date had a switchyard, wherein it negligently constructed and maintained, as alleged, several switch tracks or sidings, and also a roundhouse and telegraph station. These side tracks or switches were about one-fourth to one-half mile in length, and parallel with the main railroad track. The distance between these switch tracks was from 6 1/2 to 7 feet, and freight cars running thereover would, it is alleged, protrude and extend over and beyond the track or tracks to a distance of from 2 to 2 1/2 feet. The open space between the cars when running or standing on opposite tracks in the said switchyard did not exceed 3 feet. Thereby the space between the cars was not sufficient to enable brakemen to discharge their duties as such in the said yard with reasonable safety. About midway of the switchyard a public highway runs east and west, and crosses the main and switch tracks situated in the said yard. This highway is used and traveled by the public generally. On the date of the fatal accident, to wit, December 2, 1899, one of appellant's freight trains, upon which the decedent was employed and serving as a brakeman, was going south over appellant's road. It was composed of a locomotive engine and a large number of freight cars. Upon the arrival of this freight train at the aforesaid switchyard, it was run into the yard, onto track No. 3, and was moved through the yard towards the south until the engine and a part of the cars thereof had crossed the aforesaid highway, when it was stopped, thereby causing a part of the train to block or obstruct said highway. It is alleged then that Coombs, the decedent, while acting in the line of his duty as a brakeman on said train, and in compliance with the rules of appellant controlling the operation of said train by its servants, and also in compliance with and in obedience to the laws of the state of Indiana, prohibiting the obstruction of public highways, alighted from the train, on the west side thereof, onto the said highway crossing, for the purpose of uncoupling the cars of the train, in order that it might be cut apart, and the care thereof which were obstructing the highway crossing removed therefrom. When the train reached the switchyard, and at the time said Coombs alighted therefrom, it was about 9 o'clock, at night, and very dark; there being no lights of any kind whatever either at any point in the switchyard, or at the crossing of the said highway. Coombs, when he alighted from the train, and at the time he was engaged in the line of his work, as hereinafter mentioned, neither saw nor heard any train on the side track immediately next to the track upon which his said freight train was standing. He was engaged in his duties east of track No. 2, and was between tracks No. 2 and No. 3, and was standing at the time of the accident as near to the latter track as it was possible for him to be, and was then and there engaged in uncoupling the cars of his train, and in giving and receiving signals from those in charge thereof. The engine attached to his freight train, together with other engines in the yard near by, was blowing off steam, and made such a noise that it was impossible for him to hear the running or approach of any train on track No. 2. While in the line of his duties and discharging the same as aforesaid stated, the defendant railroad company carelessly, negligently, and recklessly backed and run, from the south, a train, consisting of 15 freight cars and a locomotive engine, along, over, and upon track No. 2, backing and running the said train over and across the said public highway. One of the cars of the said train, in the north end thereof, was a very large box car, and, including the projections thereof, was about 10 feet, and over, in width. There was no light upon the said train, and it was run and backed with no watchman or lookout thereon, and no signal whatever of its approach was given. The bell on the engine at no time was rung when the train was in motion. Neither was the engine whistle sounded at any time when the said train was being backed down to the said highway crossing. It is disclosed, in general, that no signal or warning whatever, of any kind, was given by the defendant of the approach of said train; and it is alleged that the engine bell of said train was not rung, nor was the engine whistle sounded, when the said train was within 80 rods of the said highway crossing, nor at any point when the train was approaching the said crossing where the decedent was engaged in uncoupling cars and in giving signals, as aforesaid stated. Said train and cars struck and killed said decedent while engaged in the discharge of his duties as hereinbefore alleged. It is further charged that the defendant so negligently constructed its side tracks and switches at the said highway crossing where the decedent was killed as aforesaid that the space between the cars on the train upon which he was brakeman and the cars of the train by which he was killed did not exceed 2 1/2 feet. Coombs had no knowledge whatever of the approach of the train at the time he was killed, and no warning was given him by the defendant of the danger to which he was exposed. At the close of the pleading, among other things, it is alleged “that by reason of the defendant's negligence in not having a light or a watchman at said highway crossing, and in not having a light, signal, person, or watchman on said car and train thus pushed over said track and highway crossing, and in not sounding the whistle nor ringing the bell on said engine of said train, and by reason of said defendant's negligence in not giving any signal or warning whatever of the approach of said train to the crossing of said public highway, and by reason...