Baltimore & O. S. W. Ry. Co. v. Peterson

• Decision Date: 26 March 1901
• Citation: 59 N.E. 1044,156 Ind. 364
• Parties: BALTIMORE & O. S. W. RY. CO. v. PETERSON.
• Court: Indiana Supreme Court

156 Ind. 364

59 N.E. 1044

BALTIMORE & O. S. W. RY. CO.

v.PETERSON.

Supreme Court of Indiana.

March 26, 1901.

Appeal from circuit court, Daviess county; D. J. Hefron, Judge.

Action by Dora I. Peterson against the Baltimore & Ohio Southwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Gardiner & Gardiner and E. W. Strong, for appellant. C. K. Tharp, for appellee.

JORDAN, J.

Appellee, as the administratrix of Frank Peterson, her deceased husband, instituted this action to recover damages on the account of his alleged negligent killing by appellant. A trial in the lower court, before a jury, resulted in a verdict being awarded her for $1,500, and, over appellant's motion for a new trial, judgment was rendered for this amount.

Appellant, under its assignment of errors, contends-First, that the second paragraph of the complaint upon which, as the record discloses and the parties concede, the judgment in question is based, is insufficient on demurrer; second, that the court erred in giving and refusing certain instructions; and, third, that the evidence is not sufficient to support the judgment. Among other material matters, the second paragraph of the complaint sets out the following facts: Appellee's decedent, on and prior to January 18, 1897, was an employé of the appellant, the railway company whose railroad runs through the city of Washington, Daviess county, Ind., in which city said railroad company owns and operates, in connection with its railroad, a switch yard. On said 18th day of January, and for some years prior thereto, an ordinance adopted by the common council of said city of Washington was in full force and effect. Two of its sections, 5 and 10, which have a bearing on the things alleged in the complaint, are set out and embodied therein, and are as follows:

“Sec. 5. That it shall be the duty of every locomotive engineer, conductor or other personor persons engaged in running any locomotive within said city to ring the bell attached to such locomotive whenever the same shall be moving in or through said city or any part thereof.”

“Sec. 10. No locomotive engineer, conductor or other person managing or controlling any locomotive engine, car or cars or train of cars, shall run or cause to be run any locomotive engine, car or cars or train of cars, backward in or through said city or any part thereof, without providing for a watchman, or other person, on the rear of such train, and if at night, such watchman shall have and carry a good bright light, in order to avoid accidents.”

On the aforesaid date it is charged that said decedent, then in the service of appellant, was engaged, in the line of his duty as such servant, in repairing and cleaning one of the railroad tracks located in, and connected with, appellant's said switch yard; that while performing said work, and while his attention was fixed thereon and engrossed therein, appellant and its employés in charge of an engine and freight cars, and engaged in running and operating the same, in said switch yard, carelessly and negligently pushed and kicked said freight cars backward on the railroad track where the decedent was at the time engaged in his work, whereby he was run over and injured by said cars, from the effects of which he died. It is further charged that said cars were negligently pushed and run onto said track by appellant and its servants, without giving said decedent any notice of their approach, and without ringing the engine bell attached to said engine, and without having a watchman at the time on the rear of such train of cars to control them and to give said decedent warning of their approach. It is further alleged, by reason of his attention being so fixed upon his work and engrossed therein, that he did not see said cars approaching, nor did he have any notice or knowledge of their approach, at the time of said accident. Absence of contributory negligence upon the part of said decedent is also expressly shown. The validity of the ordinance in question is assailed; hence the jurisdiction of this appeal is lodged in this court.

Counsel for appellant contend that the complaint is predicated upon the theory that, at the time appellee's decedent sustained the fatal injury by being run over as alleged, appellant was handling its cars in violation of the provisions of the ordinance mentioned and set out in the pleading. It is further contended that, under the averments of the complaint, the switch yard where the accident occurred, while within the limits of the city of Washington, is clearly shown to be the private property of appellant, and that, therefore, so far as the ordinance in question attempts to control the operation or running of cars in said yard, it is unreasonable and invalid. Counsel contend that, while the public has an interest or concern in the manner in which cars are run through the city where there are many street crossings, still such interest or concern does not extend to the private grounds of the railroad company, and that, under the alleged facts, appellee's intestate, as the servant of appellant, did not come within the protection of this ordinance, for the reason that the latter cannot to this extent be sustained as a reasonable exercise of the power of the common council. Clause 42, § 3541, Burns' Rev. St. 1894 (section 3106, Rev. St. 1881; section 3106, Horner's Rev. St. 1897), relating to the powers of common councils of cities organized under the general laws of this state, reads as follows: “To regulate the speed of railroad trains through the city; and also provide, by ordinance, for security of citizens and others from the running of trains through any city, and to require railroad corporations to observe the same; and also to require such corporations to keep clean the gutters and crossings of the streets along which their railways pass.” The contention is further advanced that the common council of a city, under this provision of the statute, is limited to the regulation of trains running through such city, and it not empowered to regulate the manner of handing or operating or running locomotive engines and cars in or through the yards of a railroad company, and that any attempt to exercise such power, it is claimed, will be invalid. The complaint discloses that the switch yard in question is situated within the limits of the city of Washington, and is used by appellant in connection with the operation of its railroad. It is true that the complaint does not fully disclose to what extent, if any, the public in general was invited or permitted by the company to pass over or through its switch yard. That a city, under the laws of this state, has the power to regulate the operation of locomotive engines and railway cars within its limits, has been repeatedly recognized and upheld by the decisions of this court. Railway Co. v. Long, 112 Ind. 166, 13 N. E. 659;Pennsylvania Co. v. Stegemeier, 118 Ind. 305, 20 N. E. 843; Railroad Co. v. Moore, 152 Ind. 345, 53 N. E. 290. Such ordinance, when authorized to be adopted by a municipal corporation, has the force and effect of a statute enacted by the legislature. Swindell v. State, 143 Ind. 153, 42 N. E. 528, 35 L. R. A. 50, and cases cited. In the appeal of Railway Co. v. Long, supra, the fatal accident was charged to be due to the negligence of the railway company, through its servants, in backing a locomotive engine and certain cars under their control over and upon the deceased, who was engaged in switching cars at the Union Switch Yards, in the city of Indianapolis. The complaint in that case charged that the railroad company backed the engine and cars in question without giving deceased warning of their approach, in violation of the provisions of an ordinance adopted by that city. The sections of the ordinance involved in that appeal were substantially the same as those now in question. By the ordinance in that case, it was made the duty of every engineer, conductor, or other person running a locomotive engine to ring the bell attached thereto, whenever such engine should be moving through the city. It was also made unlawful to run any locomotive or train or cars backward, in or through the city, without having a watchman on the rear end of the train, in order to avoid accidents. This court, per Mitchell, J., in that appeal said: “The appellant owed the duty of operating its train in careful compliance with the city ordinance, and with a due regard for the safety of all those who were in the exercise of corresponding rights or duties upon the tracks and grounds of the Union Company, or of those who might be found on the company's tracks and grounds. * * * When the appellant had properly manned its train, and stationed a watchman on the rear car, its employés were justified in assuming, while backing at a rate of speed of less than four miles an hour and ringing the bell continuously, that all persons who had arrived at years of discretion, and who were in a situation to see the train, and who were not so engaged as to render them oblivious to its approach, would avoid contact with the cars.” In Railroad Co. v. Moore, supra, the action was based upon the fourth clause of the employers' liability act (section 7083, Burns' Rev. St. 1894). This section provides that every railroad corporation “operating in this state shall be liable for damages for personal injury suffered by an employé while in its service, the employé so injured being in the exercise of due care and diligence, in...