Baltimore And Ohio Railroad Company v. Keiser
| Decision Date | 09 March 1911 |
| Docket Number | 6,886 |
| Parties | BALTIMORE AND OHIO RAILROAD COMPANY v. KEISER |
| Court | Indiana Appellate Court |
Rehearing denied June 29, 1911. Transfer denied June 26 1912.
From Starke Circuit Court; John C. Nye, Judge.
Action by Frank M. Keiser against the Baltimore and Ohio Railroad Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Miller Shirley & Miller, for appellant.
Kelly & Pentecost and H. A. Steis, for appellee.
An appeal from the Starke Circuit Court from a judgment of $ 2,000, for personal injuries, in favor of appellee and against appellant.
The errors assigned are: Overruling the separate demurrers to the first, second and third paragraphs of complaint, overruling the motion for judgment on the interrogatories, notwithstanding the general verdict, and overruling the motion for a new trial.
The first paragraph of complaint alleges, in substance, that appellant owned and operated a railroad through the village of McCool, in Porter county, Indiana; that it maintained a water-tank a short distance from said town, and operated a double track through the town, between which tracks there was a path for the use of its employes while engaged in the discharge of their duties, and especially for the use of brakemen in going alongside trains to examine cars and to inspect and release air-brakes; that appellant negligently constructed its roadbed near said town by leaving an opening near the water-tank, about four feet in width and twenty feet deep from the surface of the roadbed, and negligently failed in any way to guard or to cover the same, or to warn persons using such path of the danger incident thereto; that said roadbed was so constructed and maintained with full knowledge that the space between the tracks was of necessity used by appellant's employes as a path in discharging their duties to the Company; that said path extended between said tracks on either side of said opening, which was caused by a highway passing under said railroad tracks; that on February 3, 1905, appellee was in the employ of appellant as a freight brakeman; that his duty required him to keep constant look over the train, to obey all orders of the conductor, to give signals, to look after air-brakes, and see that they were in proper working order, and if found not to be, to go alongside the train and release the air by pulling a rod attached to the cars for that purpose; that on said date appellee was engaged in the discharge of his duties in the caboose of said train, which was managed by other employes of appellant, including engineer, conductor, fireman and other brakemen; that said train stopped at McCool to take water, and after so doing, the engineer carelessly and negligently started said train and moved it for some distance, and then caused it to stop momentarily, and then again moved it for some distance, and then momentarily, topped it again, and then carelessly and negligently blew the whistle and gave signals to start, which signals were the usual signals for departing from the station; that it was the usual and customary practice of the engineer to sound the whistle for leaving the station only after the caboose of the freight-train was over, across and beyond the opening in the roadbed over said bridge; that on account of the negligence of the engineer in giving the signals and sounding the whistle for the departure from said station, and because of the previous moving and stopping of the train, appellee was thereby, and on account of the general custom of so starting trains at that place, informed and led to believe that the caboose, in which he was working, had passed said opening, and that he was safe and free from danger if required to leave the train for any purpose; that immediately after the engineer signaled to leave the station and the train started, appellee discovered that some of the air-brakes were not working, and it was necessary for him, in the discharge of his duties, to leave the caboose and use the path to go alongside the cars, and release the air-brakes by pulling said release rods; that immediately on discovering the failure of the air-brakes to work, he left the caboose, taking with him a lantern, and proceeded alongside the train, over said path between the tracks, while the train was moving at a rate of speed of about four miles an hour, to a car on which the air-brakes had failed to work; that while in the act of looking under the car and getting hold of the rod to release the air-brake, not knowing the opening to be at that place, he came suddenly to said opening in the roadbed, which, from the signals given by the engineer, he believed the train had passed, and was suddenly and violently thrown into said opening, and fell to the roadway below, a distance of twenty feet, on the frozen ground, and was severely injured; that the accident occurred about 2 o'clock in the morning, when the weather was severely cold.
The second paragraph is substantially the same as the first, except that it alleges that appellant carelessly and negligently constructed and maintained its roadbed, by leaving said opening near the water-tank uncovered, and without guards or signals or anything to show at night the danger in using said path, and did so with full knowledge that the space between the ends of the ties was of necessity used by its employes as a path while in the discharge of their duties at that place.
The third paragraph of complaint is substantially the same as the first, except the following averments: "That while in the performance of his said work in attempting to release the air-brakes his mind was entirely absorbed in the doing of said work, so that he did not know and was not able to know at that time the particular place where he was with reference to the opening in the roadbed; that he was required to act promptly and hurriedly in the attempt to release the air-brake immediately upon the discovery that the same was not working properly and he says that in response to such immediate demand, in the hurriedness of his work, and that because of the fact that the work which he was doing demanded and required of him his full care and attention the plaintiff says, he was not able to know, or see and did not know the precise place where said opening in the roadbed was and did not see said opening with reference to the time his doing the work herein mentioned, and that said footway between the two tracks was the only available space for him to perform the work herein alleged that he did perform."
Appellee insists that appellant has not complied with the rules of this court in the preparation of its brief, and that no question is presented for decision, but, on application, permission was granted to file an amended brief, which appellant has done, and in which it has set out the demurrers. The amended brief shows a substantial compliance with the rules of this court, except in the failure to set out a condensed statement of the evidence in narrative form.
The record shows that sixteen witnesses testified, and appellant has mentioned only three of them, but has given a statement of the evidence under three subheads, viz: "The Place of the Accident", "The Plaintiff", and "The Accident". There are 248 pages of the evidence in the record, which appellant has condensed into nine pages in its amended brief. While terseness is to be commended, the absence from the condensed statements of the evidence of any reference to the testimony of numerous witnesses on important and vital matters in issue, makes it impossible to say that there has been such substantial compliance with the rules in this regard as the decisions of this court and the Supreme Court require. Welch v. State, ex rel. (1905), 164 Ind. 4, 108, 72 N.E. 1043; Indiana, etc., R. Co. v. Ditto (1902), 158 Ind. 669, 672, 64 N.E. 222.
Where necessary to consider instructions, and determine whether under the evidence they are applicable, the court in this situation is not required to pass on them, except to decide whether proper, considering any evidence that might be given under the issues as formed. Welch v. State, ex rel., supra; Fifth Ave. Sav. Bank v. Cooper (1898), 19 Ind.App. 13, 17, 48 N.E. 236; Hilker v. Kelley (1892), 130 Ind. 356, 30 N.E. 304, 15 L.R.A. 622.
The objection urged to each paragraph of the complaint is that there is no averment that appellee was ignorant of the conditions which are alleged to constitute the negligence of appellant in the construction and maintenance of the bridge where appellee was injured, and the further objection that no negligence is shown.
The theory of each paragraph of the complaint is that the facts alleged show an exception to the general rule denying recovery to a servant who has previous knowledge of the dangers complained of, and which are incident to his employment.
There are cases, where the danger is obvious, in which it cannot be ruled, as a matter of law, that an employe assumes the risk. If the facts averred show appellee to be surrounded by extraordinary circumstances, not of his own making, in which his attention is diverted from the danger by a great and important duty to his master, which he is required to discharge, it then becomes a question for the jury to say whether, under all the circumstances shown by the evidence, the risk was or was not assumed.
The averments of each paragraph of the complaint are sufficient on this theory to state a cause of action, and there was no error in overruling the separate demurrers. Thompson Negligence §§ 4731-4752; Baltimore, etc., R. Co. v. Leathers (1895), 12 Ind.App. 544, 40 N.E. 1094; Wallace v. Central Vt. R. Co. (1893), 138 N.Y. 302, 33 N.E. 1069; Williams v. St....
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