Baltimore & O.R. Co. v. Faust

• Citation: 148 N.E. 433,85 Ind.App. 435
• Decision Date: 02 July 1925
• Docket Number: No. 12317.,12317.
• Parties: BALTIMORE & O. R. CO. v. FAUST.
• Court: Indiana Appellate Court

85 Ind.App. 435

148 N.E. 433

BALTIMORE & O. R. CO.

v.FAUST.

No. 12317.^*

Appellate Court of Indiana, Division No. 2.

July 2, 1925.

Appeal from Circuit Court, De Kalb County; W. P. Endicott, Judge.

Action by Theressa Faust, executrix under the will of John H. Faust, deceased, against the Baltimore & Ohio Railroad Company, to recover damages for the death of said decedent, alleged to have been caused by defendant's negligence. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Faust had been employed by the defendant in its railroad yards at Garrett, Ind., for several years. In addition to other duties, he was required to assist in icing refrigerator cars. These cars were supplied with ice from an icehouse located in defendant's yards. The work was done by several workmen who dragged the ice out of the ice-house to a platform nearly level with the tracks; thence they moved it up an inclined chute to another platform, which was on a level with the top of the cars and from which the ice was placed in the cars through openings in the roof. The workmen pushed the blocks of ice up the chute as far as they could reach by the use of poles or handles, to the ends of which were attached metal hooks, and a man on the elevated platform would pull the ice blocks the rest of the way with his ice hook. On the night he received his injury, Faust and his fellow workmen had been ordered to ice a certain car designated as B. & O. No. 14383. In pushing the ice up the chute two of the workmen stood on the lower platform, one on either side of the chute. Another workman stood on the upper platform, and by striking his ice hook into the top of a cake of ice assisted in pulling it upon the platform. Faust was on one side of the chute at the lower platform. When a cake of ice neared the top of the chute, in some manner the men lost control of it. It slid back down the chute and struck Faust on the chest, thereby seriously and fatally injuring him.

It is averred in the complaint that the car which Faust was assisting to ice had been selected and assigned by the defendant for use in hauling freight and merchandise originating in the state of Indiana, and consigned to and destined for a place in another state of the United States; that the car had been assigned by the defendant, and was then being prepared by it, for use in hauling merchandise and freight as above described; that the car was being iced in order that it might be used as aforesaid; and that therefore the plaintiff's decedent was employed in interstate commerce and traffic by rail.

The complaint also charges that the defendant carelessly and negligently failed to furnish and provide for use in the performance of the work safe, suitable, and adequate hooks for handling the blocks of ice, and carelessly and negligently provided, furnished and used in the work hooks of soft metal with dull points and loose and shaky handles, so that it was difficult, if not impossible, to secure a firm hold on the block of ice, and carelessly and negligently failed and neglected to examine, inspect, and keep in a reasonably safe and suitable condition the hooks used in the performance of the work, and carelessly and negligently failed to get a secure hold on the heavy block of ice, and to hold the block after it had been shoved partially up the inclined way.

The following facts were adduced in evidence in the form of stipulation signed by counsel for each part...