Baltimore & O.R. Co. v. Keiser

• Decision Date: 09 March 1911
• Docket Number: No. 6,886.,6,886.
• Court: Indiana Appellate Court
• Parties: BALTIMORE & O. R. CO. v. KEISER.

51 Ind.App. 58

94 N.E. 330

BALTIMORE & O. R. CO.

v.KEISER.¹

No. 6,886.

Appellate Court of Indiana, Division No. 1.

March 9, 1911.

Appeal from Circuit Court, Starke County; John C. Nye, Judge.

Action by Frank M. Keiser against the Baltimore & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.Miller, Shirley & Miller, for appellant. Kelley & Pentecost and H. A. Steis, for appellee.

FELT, J.

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 the overruling of the separate demurrers to the first, second, and third paragraphs of complaint, overruling of the motion for judgment on the interrogatories, notwithstanding the general verdict, and overruling of 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, Ind.; 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 footpath for the use of its employés 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 to in any way guard or cover the same, or to warn persons using such passageway 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 employés as a footway in discharging their duties to the company; that said pathway extended between said tracks on either side of said opening, which was caused by a highway passing under the said railroad tracks; that on the 3d day of February, 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 employés 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 and pulled said train for some distance, and then caused the same to stop momentarily, and then again pulled said train for some distance, and then momentarily stopped 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 in giving the signals and sounding the whistle by the engineer for the departure from said station, and because of the previous moving and stopping of the train, the 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 upon the signaling of the engineer to leave the station and the starting of the train, 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 footway to go alongside the cars and release the air brakes by pulling said release rods; that immediately upon 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 pathway between the tracks, while the train was moving at a rate of speed of about four miles an hour, to a car upon 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, and while so doing, not knowing the opening to be at that place, he suddenly came to said opening in the roadbed which, from the signals given by the engineer, he believed the train had passed, and was thereby suddenly and violently thrown into said opening and fell to the roadway below, a distance of 20 feet, upon 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 pathway, and did so with full knowledge that the space between the ends of the ties was of necessity used by its employés as a footway 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 of 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 upon 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 16 witnesses testified, and appellant has only mentioned 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 had condensed into 9 pages in its amended brief. While terseness is to be commended, the absence from the condensed statement of the evidence of any reference to the testimony of numerous witnesses upon 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 and the Supreme Court require. Where necessary to consider instructions and determine whether under the evidence they are applicable, the court in this situation is not required to pass upon them, except to decide whether proper, considering any evidence that might be given under the issues as formed. Welch v. State ex rel., 164 Ind. 104-108, 72 N. E. 1043;Fifth Ave. v. Cooper, 19 Ind. App. 13-17, 48 N. E. 236;Hilker v. Kelley, 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 the appellee was ignorant of the conditions which are alleged to constitute the negligence of the appellant in the construction and maintenance of the bridge where he 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 employé assumes the risk. If the facts averred show the 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 upon this theory to state a cause of action, and there was no error in overruling the separate demurrers. Volume 4, Thompson on Negligence, §§ 4731-4752; B. & O. C. R. R. Co. v. Leathers, 12 Ind. App. 544, 40 N. E. 1094;Wallace v. Cent. Vt. R. R. Co., 138 N. Y. 302, 33 N. E. 1069;Williams v. St. L. & S. F. Ry. Co., 119 Mo. 316, 24 S. W. 782;Maue v. Erie R. R. Co., 198 N. Y. 221, 91 N. E. 629;Strong v. Iowa C. Ry. Co., 94 Iowa, 380, 62 N. W. 799; C. & A. Ry. Co. v. Johnson, 116 Ill. 206, 4 N. E. 381.

In B. & O. C. R. R. Co. v. Leathers, supra, on page 549 of 12 Ind. App., on page...