Abbitt v. Lake Erie and Western Railway Company

• Decision Date: 24 May 1898
• Docket Number: 17,007
• Citation: 50 N.E. 729,150 Ind. 498
• Parties: Abbitt, Administratrix, v. Lake Erie and Western Railway Company
• Court: Indiana Supreme Court

50 N.E. 729

150 Ind. 498

Abbitt, Administratrix, v. Lake Erie and Western Railway Company

No. 17,007

Supreme Court of Indiana

May 24, 1898

From the Marion Superior Court.

Affirmed.

J. E McCullough and H. N. Spaan, for appellant.

John B Cockrum, W. H. H. Miller, J. B. Elam and F. Winter, for appellee.

Jordan J. McCabe and Howard, JJ., dissent.

OPINION

Jordan, J.

Appellant, as the administratrix of William F. Abbitt, instituted this action in the special term of the Marion Superior Court to recover of the appellee railroad company, damages for the alleged negligent killing of her decedent. On a trial before a jury she was successful in her action, and a verdict was returned in her favor for eight thousand dollars, and over appellee's motion for a new trial, judgment was rendered upon the verdict. From this judgment appellee appealed to the general term of the Marion Superior Court, where it secured a reversal, and from the judgment of the general term, reversing that of the special term, the administratrix has appealed to this court.

The complaint upon which the action is based is in three paragraphs, and the material facts averred in each of them may be summarized as follows: By the first paragraph, it is disclosed that the plaintiff is the administratrix of the estate of William F. Abbitt, deceased; that on June 4, 1891, decedent was an employe of the Cincinnati, Hamilton & Dayton Railroad Company as a car inspector. Part of his duty as such was, every morning at about 3:45, to inspect the cars of a train which left the Union Station at Indianapolis, Indiana, at 3:55 a. m. over said C., H. & D. road for Cincinnati, Ohio, and to change a "draw bar" on a certain sleeper, which was transferred from the Vandalia to the C., H. & D. Co.'s tracks, to become a part of said train. On said date, decedent was under one of the cars of said train, as it stood in the Union Depot, inspecting the same and changing the "draw bar" or coupler, as was his duty, said train at the time not being fully made up and not coupled together, and upon the rear thereof were hung out red danger signals, as danger signals to other railway employes and the public, warning them that it was unsafe to attempt to switch cars about there, or to attempt to couple the same to said train while the same was being inspected, and while decedent was performing said duty under and about them. While decedent was so engaged, certain employes of defendant, well knowing that decedent was so performing his said duty in and about said train, and notwithstanding the presence of said danger signals, carelessly and negligently backed a car against the one decedent was under and inspecting, crushing him to death. Absence of contributory negligence on the part of the decedent is alleged. Decedent was thirty-two years old, in good health, earning $ 1.90 per day; left plaintiff as his widow, but no child or children, and damages in the sum of $ 10,000.00 are demanded.

By the second paragraph it is shown that plaintiff is the duly appointed administratrix of said decedent's estate. That on June 4, 1891, decedent was in the employ of the C., H. & D. Ry. Co. as a car inspector, part of his duty as such being, every morning at about 3:45, to change a "draw bar" on a certain sleeper that was changed from the Vandalia tracks to those of the C., H. & I. in making up the morning train on said last named road, bound for Cincinnati. At said time on said morning decedent was under said car as it stood in the Union Depot on the track used by the C., H. & I. Co., inspecting the same and changing the "draw bar" or coupler, as was his duty, said train not yet being coupled together, and the sleeper aforesaid standing away from the cars constituting the remainder of said train. Said car formed the rear of said train, and had hung out upon the rear end thereof red danger lights and signals, known as "markers" and danger lights, to denote the end of the train to those coming from the rear, and to the engineer in front when running, also to warn persons in charge of trains that there is danger in approaching such car upon which such lights are displayed. Defendant's servants at the time and place aforesaid were backing and pushing a car along the track upon which the train and sleeper under which decedent was at work was standing, and attempted to couple the same on the rear end of the car under which decedent was at work. The servants of the defendant were engaged in the employment of switching, and backed and pushed said car carelessly and negligently against said sleeper, with such force and violence as to cause the wheels thereof to run onto and over decedent, crushing and mangling him, so that he died as a result of the same. Freedom from contributory negligence on the part of the decedent, and his age, etc., are alleged.

The third paragraph alleges facts similar to the first and second, but avers that in order to change the "draw bar" and coupler, it was necessary to get under the front end of the sleeper to loosen one bar or coupler, and to put in the other bar. That according to the common usage of railway companies whose lines center in Indianapolis and use the Union Depot in their passenger traffic, and all other lines and places along said lines, the use of red lights is a signal of danger and warning, and when such lights are placed upon the rear platform and end of a car, or in other places, they are, in such positions, a signal of warning and danger to all employes of all railroads using, as aforesaid, said Union Station, and it is such signal on all other railroads along the several lines; and when such red lights are displayed, it is the duty of trainmen approaching the same to use care, and is notice that danger is near. While decedent was working under the car there was upon the rear platform and end of said car, red lights, or danger signals, and decedent, as a railway employe of experience, knew that, so placed, were such danger signals to all who might come about said car, whether in course of duty or otherwise; and said danger signals were in use on said C., H. & D. Ry. Co.'s lines, and had been for a long time prior thereto. While decedent was at work, and when such danger signals were so displayed upon the rear end of the sleeper, certain employes of defendant, carelessly and negligently backed and pushed cars against said sleeper, without paying sufficient attention to said signal of warning and danger, and not sufficiently heeding the same, well knowing that such red light was such signal and warning, and it being their duty, in the presence of such signals, to act with care and caution, they then and there acting as trainmen and as a switching crew, that being their duty. When said car, aforesaid, was backed and pushed, it ran upon and over the decedent, crushing him to death, etc. Freedom from contributory negligence, and facts in respect to the age of the decedent are alleged, and the demand is for $ 10,000.00.

It may be said, we think, under the theory upon which each of these paragraphs proceed, that the wrong imputed to the defendant and the negligence upon which the plaintiff founds her action, consist in the act of the defendant in disregarding the red lights or danger signals on the end of the car in question, and, under the circumstances, backing or pushing the car or cars against the one under which the decedent was engaged at work, as alleged, and thereby killing him. The following, in the main, may be said, we think, to be a summary of the facts disclosed by the evidence in respect to and concerning the alleged negligent killing of appellant's decedent: On and for some time prior to June 4, 1891, the Louisville, New Albany & Chicago Railroad Company, known as the "Monon" company, had a running arrangement with the Cincinnati, Hamilton & Dayton Company, known as the "C., H. & D." company, operating the Cincinnati, Hamilton and Indianapolis Railroad, by which a solid train was run from Chicago to Cincinnati, in which passengers were carried through without change of cars. One of these trains so run was known as "Number 33." A Monon engine, with its crew, brought this train from Chicago to Indianapolis, and at a point east of the Union Station in said city, pulled it on to a "Y" and from that point backed it into the Union Station, and headed it east for Cincinnati. The Monon engine would then be detached, and an engine of the Cincinnati, Hamilton & Dayton Co. would pull the train to Cincinnati. At and before the time of the accident in controversy, the Monon company had no switching facilities of its own at Indianapolis, and consequently had a general arrangement or agreement with the Lake Erie & Western Railroad Company, appellee herein, under which all switching required by the Monon was performed by the appellee. Train number 33 was scheduled to arrive at Indianapolis daily, shortly after 3 o'clock in the morning, and always brought one sleeper for the use of Indianapolis passengers, which would be cut off and left at the yards at Indianapolis. This sleeper was usually, it seems, the rear car on the Monon train, and when it reached the "Y" heretofore mentioned, it would be uncoupled and taken to the yards, and was not backed into the Union Station with the remainder of the train. It sometimes occurred that an extra sleeper would be attached to the Monon train, to be placed in the rear of the Indianapolis sleeper. This, however, was usually an empty sleeper, being transferred from one end of the road to the other so as to be convenient when needed. When this occurred, it appears that appellee's yardmaster would be informed by telegraph by the Monon company in regard to this extra sleeper, and directions would be given by him to the...