Cincinnati, H.&D. Ry. Co. v. McCollum
| Decision Date | 21 February 1911 |
| Docket Number | No. 7,136.,7,136. |
| Citation | 93 N.E. 1033,47 Ind.App. 184 |
| Court | Indiana Appellate Court |
| Parties | CINCINNATI, H. & D. RY. CO. v. McCOLLUM. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marion County; H. C. Allen, Judge.
Action by Joseph M. McCollum, as guardian of Joseph W. Roebuck, a person of unsound mind, prosecuted after the latter's death by the former as administrator, against the Cincinnati, Hamilton & Dayton Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.John B. Elam, Jas. W. Fesler, and Harvey J. Elam, for appellant. J. B. Little, for appellee.
Joseph McCollum, as guardian of Joseph W. Roebuck, a person of unsound mind, filed his amended complaint in the court below against the appellant, the Cincinnati, Indianapolis & Western Railway Company, and the Chicago, Indianapolis & Louisville Railway Company to recover damages for personal injuries alleged to have been received by said Roebuck while in the employ of defendants as freight brakeman by being struck on the head by an arm which fell from a defective switch target. After this appeal was taken, Roebuck died, and Joseph M. McCollum, administrator of estate of Roebuck, was substituted as appellee herein. The negligence charged in the first paragraph is substantially that on September 26, 1904, and long prior thereto, the defendants and each of them had negligently failed to inspect and keep in repair said switch signal; that by reason of said negligence it had become unsafe and insecure, in that the bolts and rivets of said switch signal had rusted away and fallen out leaving it defective; that it was Roebuck's duty to operate said switch signal; that in the exercise of due care he did throw, turn, and operate the same; that because of the unsafe, unsound, and insecure condition of said switch signal it fell upon the plaintiff's (Roebuck's) head and injured him; that he had no knowledge of said unsafe condition. The second and third paragraphs do not differ materially from the first. The second charges a violation of a rule requiring inspection, and the third proceeds upon the theory of delegated supervision of such switch target. The cause was afterwards dismissed as to the Cincinnati, Indianapolis & Louisville Railway Company. Upon general issue formed, a trial was had by jury and a general verdict returned in favor of appellee's ward and against appellant. With the general verdict the jury returned answers to interrogatories. At the close of plaintiff's evidence, the Cincinnati, Indianapolis & Western Railway Company successfully moved the court for a peremptory instruction in its favor. The appellant also moved the court for a peremptory instruction, which motion was overruled. Said motion was again renewed at the close of all the evidence with the same result. Over appellant's motion for judgment on the answers to interrogatories, and for a new trial, judgment was rendered on the verdict.
The errors assigned and relied upon for reversal are error of the court in overruling appellant's motion (1) for peremptory instruction, (2) for judgment on the answers to interrogatories, and (3) for a new trial.
The first alleged error is waived by failure to discuss.
The jury in their answers to interrogatories found that Roebuck was injured on September 26, 1904, at Glenwood, Ind.; that while he was operating a switch the switch target, weighing about 15 pounds, fell off and hit him on the head; that the target was fastened on with two rivets just before it fell; that the target had been in substantially the same condition for over six months; that the target would “flop around when the switch was turned and make a noise as it flopped”; that when operating the switch the head of a man six feet high would be three feet from the lower edge of the target; that another brakeman (Johnson) observed...
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