Baltimore And Ohio Southwestern Railroad Co. v. Trennepohl

• Decision Date: 07 April 1909
• Docket Number: 6,657
• Citation: 87 N.E. 1059,44 Ind.App. 105
• Parties: BALTIMORE AND OHIO SOUTHWESTERN RAILROAD COMPANY v. TRENNEPOHL
• Court: Indiana Appellate Court

87 N.E. 1059

44 Ind.App. 105

BALTIMORE AND OHIO SOUTHWESTERN RAILROAD COMPANY v. TRENNEPOHL

No. 6,657

Court of Appeals of Indiana

April 7, 1909

Rehearing denied June 9, 1909.

From Jennings Circuit Court; Francis M. Thompson, Judge.

Action by Christian Trennepohl against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for plaintiff defendant appeals.

Affirmed.

Edward Barton, Robert Alcorn, McMullen & McMullens and Lincoln Dixon, for appellant.

James H. Connelley, Willard New and Burt New, for appellee.

OPINION

ROBY, J.

Action by appellee to recover damages for personal injuries alleged to have been sustained by him while engaged as a laborer in loading and placing wood in a box-car on a side-track of the defendant company, by reason of the negligent running of an engine, by the employes of defendant, against the box-car in which he was working, throwing him down, and causing the wood in the car to fall upon and injure him. A demurrer to the amended complaint was overruled, general denial filed, trial by jury and verdict for appellee. Motion to dismiss the action for the alleged reason that a champertous agreement existed between appellee and his attorney was overruled, motion for a new trial was overruled, and judgment was rendered on the verdict for $ 2,500 and costs.

Errors are assigned upon the action of the court in overruling the motion just mentioned and in overruling the demurrer to the complaint.

The amended complaint alleged that the defendant was, on the day of the injury, a common carrier for hire; that Fred Roettle was on said day engaged in shipping cord-wood over the defendant's road from the station at Milan, Indiana, and had at said time in his employ the plaintiff, who was engaged as a common laborer in loading and placing said cord-wood in a box-car on a side-track of the defendant company at said station; that the car was placed upon the track by the company where it had ordered the wood to be loaded; that while the plaintiff was in the car, and in the place he had been invited by the company to occupy, and while engaged in the performance of his duties, the defendant, knowing at the time that the plaintiff was in the car, unlawfully, carelessly and negligently ran a locomotive engine over and upon said side-track where said car was being loaded, upon and against said car with great force and violence, without giving plaintiff any notice or warning of the approach of the engine, and by the force of said collision plaintiff suffered the injuries complained of. Appellant contends that the complaint is insufficient; that appellee stood in the same relation as an employe of appellant; that he assumed the risk, and that a specific allegation negativing knowledge of the danger is necessary. These contentions are erroneous.

"A railroad company, which is a common carrier of goods, and which by its conduct invites or induces the public to use its premises, such as depots and other places set apart for receiving and discharging freight, is under special obligation to keep such premises safe for such use for all persons coming upon the premises to transact business with such company, and among those who are entitled to this protection are such persons who come there for the purpose of delivering or receiving freight. * * * This duty includes the further one of furnishing to persons lawfully upon the railroad track of such company, engaged in loading or unloading freight, protection from injury by approaching trains or locomotives. In such cases, a person having business with the company of the character indicated, has a right to occupy a position designated by the agent of the company, even if such position be hazardous, and to rely upon the diligence of the company to protect him from danger." Toledo, etc., R. Co. v. Hauck (1893), 8 Ind.App. 367, 373, 35 N.E. 573, and numerous cases cited. And see Chicago, etc., R. Co. v. Pritchard (1907), 168 Ind. 398, 9 L. R. A. (N. S.) 857, 79 N.E. 508.

The trend of appellant's argument in urging error in overruling the motion for a new trial is as follows: That the collision was not caused by the speed of the engine, but by reason of a slippery track which prevented the stopping of the engine; that the complaint proceeds upon the theory that it was the negligence of the operating department and not of the maintenance of way department which caused the accident, and that the judgment was therefore erroneously rendered. "It is true that a pleading must proceed upon a single, definite theory," but this rule "should not be carried to that degree of refinement that might lead to absurdity or defeat the ends of justice." South Bend Mfg. Co. v. Liphart (1895), 12 Ind.App. 185, 39 N.E. 908. Here, as in the case just cited, "the negligence of the defendant is the basis of the liability sought to be charged" against the company, "and this is the theory of the complaint." § 343 Burns 1908, § 338 R. S. 1881. A scholarly member of the bar of this court writes concerning this subject as follows:

"The true explanation of this seeming incongruity between statutory and judicial declarations is found in considering the history of the...