Baltimore & O.S.W.R. Co. v. Roberts

• Decision Date: 26 May 1903
• Citation: 67 N.E. 530,161 Ind. 1
• Parties: BALTIMORE & O. S. W. R. CO. v. ROBERTS.
• Court: Indiana Supreme Court

161 Ind. 1

67 N.E. 530

BALTIMORE & O. S. W. R. CO.

v.ROBERTS.

Supreme Court of Indiana.

May 26, 1903.

Appeal from Circuit Court, Daviess County; H. Q. Houghton, Judge.

Action by Edward M. Roberts against the Baltimore & Ohio Southwestern Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court under section 1337u, Burns' Rev. St. 1901. Affirmed.

Gardiner, Gardiner & Slimp and Edward Barton, for appellant. C. K. Tharp, for appellee.

JORDAN, J.

Action by appellee against appellant for personal injuries sustained through the negligence of the latter while in its employ as a switchman. The complaint is in two paragraphs, to each of which a demurrer for insufficiency of facts was overruled. There was a trial by jury, and a verdict returned finding expressly in favor of plaintiff on both the first and second paragraphs of his complaint, and damages were assessed in the sum of $3,000, and, over appellant's motion for a new trial, judgment was rendered for that amount. The errors assigned are based on overruling the demurrer to each paragraph of the complaint and in denying the motion for a new trial.

The facts as averred in the first paragraph of the complaint show that appellant is a railroad corporation operating a railroad which runs through the city of Washington, Daviess county, Ind., and it owns and operates shops, turntables, switchyards, etc., at said city. Its switchyards therein constitute the terminus of its freight division, and in this yard its engines and other rolling stock are changed, inspected, overhauled, and repaired. For the purpose of conducting its business, appellant constructed and maintained a large number of railroad tracks, switches, and spurs within its said switchyard, and had in its employment in and about the said switchyard a large number of men, whose duty it was to couple and uncouple cars and switch them in said yard. Its railroad runs in an east and west direction through said city, and its switchyard is located north of its main track. Near the southwest corner of said switchyard a side track is turned from the main track, and runs in a northwest direction through the yard to the roundhouse, situated near the center of the switch grounds, and this track is known and called the “cinder track.” From near the east end of the last-mentioned track there are turned in regular order five other switch or spur tracks leading off in a northwest direction through the yards. These tracks are known and numbered as follows: The first and most eastern track is called the “chippy track,” or track No. 25; the next tracks are known in numbers as 24, 23, 22, and 21. In the construction of said tracks-especially said “chippy track” (being track 25) and track No. 24, which is next to and immediately west of the latter track 25-it was the duty of appellant to so construct them that cars upon either of said tracks could safely pass the cars upon the other, and to so construct them that switchmen and brakemen in the discharge of their duties of switching and riding cars about said yard could safely ride in the stirrup, ladders, and appliances supplied for that purpose on the box cars to be switched and hauled about said yard, and to so construct them that the switchmen and brakemen in discharge of their duties could be safely carried in the stirrup and ladders of the cars upon one of said tracks by and past the cars upon the other of said tracks. Appellant utterly failed to so construct said tracks that a switchman riding in the stirrups and ladders of the cars upon one of the said tracks could be safely carried past cars standing upon the other of said tracks, but, on the contrary, the appellant carelessly and negligently constructed and maintained said tracks so close together, and so irregular in points of distance between said tracks, that a switchman riding in the stirrups and ladders of the cars upon one of said tracks could and would come in contact with the cars upon the other of said tracks. It is shown that appellee is 31 years of age, and prior to the commission of the grievance complained of he was a man of good physical health and strength, and prior to the month of November, 1900, he had never engaged in any kind of work for railroads, and had no experience whatever in working in railroad shops or yards as a switchman, brakeman, or otherwise. About the middle of November, 1900, appellant employed appellee to work in its said yards as a switchman. As such employé it became and was his duty to couple and uncouple cars in said yard, and when they were to be switched from one track in the yard to another it became and was his duty to stand in the stirrups and ladders of the cars, and ride thereon, and be carried in this way from one part of the yard to wherever it was desired to carry and locate the car or cars. On the 4th day of December, 1900, appellant, in the transaction of its business in said switchyard, directed that a coal car which was standing upon one of the spur tracks be switched therefrom and hauled around on the said “chippy track,” and, as a switchman for appellant, it became and was the duty of appellee to uncouple said car from the cars to which it was attached, and to couple the same to the engine which was to haul it from the spur track to the “chippy track”; and likewise it was his duty, after the engine had hauled the car to the switch where it was transferred to the “chippy track,” to take a position in the stirrups on the car, and to ride thereon as it was being hauled on said “chippy track” to the place where it was intended to locate said car. In the discharge of his duty appellee boarded said car by putting his foot in the stirrup thereof as the same was being hauled by the engine to said “chippy track.” That immediately after he had boarded said car, and before he had time to discover the close and dangerous proximity of a car loaded with lumber, which was standing on track No. 24, and while he was being carried on said car in that position, his face, head, and body and other portions of his person came in sudden and violent contact and collision with the said car loaded with lumber standing on said track No. 24, and by reason thereof he was hit, struck, and knocked from his position on the said coal car to the ground, and under the wheels of said car. That by reason of the collision with the timbers of said lumber car great gashes were cut in his face and scalp, and he was knocked to the ground by the force of said collision, and his arm, wrist, and hand were run over by the wheels of said coal car, and were bruised and mangled, and his fingers were cut off. That said injuries so received have permanently scarred, disfigured, and injured his face and skull, and likewise his arm, wrist, and hand are permanently scarred, disfigured, and injured. Appellee had no knowledge at and previous to the time of said accident that the said tracks were constructed at such dangerous and close proximity to each other as to make it unsafe to engage in the business that he was engaged in at the time of the accident and to ride in the stirrups and ladders of the cars that were being switched about said yard. He had no knowledge whatever of the close and dangerous proximity of the said lumber car standing on track No. 24 to the coal car passing on the said “chippy track.” In boarding the coal car as he did when it approached him, his attention and vision at the time were required to be directed towards said coal car, and away from said lumber car, which was standing on track No. 24; and after he had taken his position in the stirrups of the coal car, and before he had time or opportunity to ascertain the close proximity of the said lumber car on track No. 24, the car upon which he was riding at the time, and before he had time or opportunity to observe or realize and know that the timber of said lumber car would strike him, he was struck thereby, and injured as aforesaid. That he was injured as aforesaid solely because of the carelessness and negligence of the appellant in suffering and permitting the said lumber car to be so near the car upon which he was riding that he could not be safely carried by the same, and by the carelessness and negligence of appellant in not providing a safe place in which the plaintiff could discharge his duties, and without any fault on his part contributing to the said injury. That by reason of the said injury he has sustained damages, etc.

As advised by appellant's brief, the second paragraph of the complaint is based upon or proceeds upon the theory that appellant is liable under the employer's liability act of 1893, by reason of the negligence of its yardmaster in charge of the switchyard in placing a car of lumber at a point on track 24, where the two tracks are so close together that a switchman riding in the stirrups of a car passing over track 25 would collide with said lumber car. The only objection urged by counsel for appellant to the sufficiency of the first paragraph of the complaint is that it fails to aver or show that appellee had no opportunity to know all about the tracks in controversy. Counsel, in presenting this objection, say: “The first paragraph of the complaint is predicated upon the theory that the appellant was negligent in constructing tracks too close together in its yard; that because of that fact the loaded car of ties was so close to the track next to the one on which it stood that appellee could not safely pass it on the next track while riding on the side of the coal car, and therefore he was not provided with a safe place within which to perform his work. In this paragraph an open yard with several tracks is described, and, while it is averred that the appellee did not know of the close proximity of the tracks, and that he was withoutfault, it is not averred that he had not opportunity to know all about them.”

The alleged infirmity in the paragraph...