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

• Decision Date: 18 February 1902
• Citation: 158 Ind. 87,62 N.E. 994
• Parties: BALTIMORE & O. S. W. RY. CO. v. JONES.
• Court: Indiana Supreme Court

158 Ind. 87

62 N.E. 994

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

v.JONES.

Supreme Court of Indiana.

Feb. 18, 1902.

Appeal from circuit court, Jennings county; Willard New, Judge.

Action by Thomas E. Jones against the Baltimore & Ohio Southwestern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

R. E. Hamill, A. H. Montgomery, and McMullen & McMullen, for appellant. Thomas C. Batchelor, for appellee.

JORDAN, C. J.

This action was instituted by appellee in Ripley county for the recovery of personal injuries, and on motion venued to the Jennings circuit court, wherein a trial before a jury resulted in a verdict for appellee, and over appellant's motion for a new trial judgment was rendered thereon. The errors assigned relate to the court's rulings on demurrer to each paragraph of the complaint, and on demurrer to certain paragraphs of the answer, and in denying the motion for a new trial. The complaint is in seven paragraphs, but it seems to be conceded by both parties that under the answer of the jury to interrogatories it is disclosed that there was a finding in favor of appellant on the third and seventh paragraphs; consequently these are not discussed or considered by counsel in their argument. Each paragraph of the complaint alleges that appellant is a railroad corporation, and owned, operated, and controlled at the time of the accident in question, and prior thereto, a railroad running and extending from the city of Cincinnati, in the state of Ohio, through the states of Indiana and Illinois, and on to the city of St. Louis, in the state of Missouri; that appellee, at the time he sustained the injuries of which he complains, resided in Ripley county, Ind., through which county said railroad runs, and that on and prior to the 7th day of December, 1896, he was employed in the service of appellant as a locomotive engineer operating and running the locomotive attached to one of its passenger trains which was run from a station in Indiana to the city of Cincinnati, in the state of Ohio; that on the said 7th day of December, while the train on which he was employed as such engineer was en route east to the latter city, and when at a station on appellant's railroad named “Storr,” in the state of Ohio, said train collided with an extra or special train which was being run west over appellant's road, by which collision appellee was seriously injured, etc. The first paragraph of the complaint attributes the accident and injury received therefrom to the failure of appellant to notify appellee of the presence on its road of said extra or special train. The second paragraph charges that the accident was due to the negligence of the railroad company in employing an unskillful and inexperienced conductor, and in placing him in charge of said special or extra train, without instructing him in respect to his duties; and that the employment of such conductor was in violation of a statute of the state of Ohio, which is set out as a part of the paragraph. The fourth paragraph charges that the accident and injury in question were wholly due to the negligence of one Price, the engineer, who, at the time of the collision, was in charge of and operating the engine attached to said special or extra train. The fifth paragraph attributes the accident to the negligence of appellant's conductor in charge of said special or extra train. By the sixth paragraph the accident is imputed to the negligence of the conductor in charge of the special train, and also to the negligence of the engineer in operating the locomotive engine attached to said train. Absence of contributory negligence is shown by the averments of each paragraph. Appellant unsuccessfully demurred to each paragraph of the complaint, and its counsel in this appeal earnestly contend that neither the fourth, fifth, nor sixth paragraph is sufficient in facts to constitute a right of action, and that, therefore, the trial court erred in overruling the demurrer. As previously said, each of these paragraphs disclosed that the accident to which appellant attributes the injuries of which he complains occurred on appellant's railroad at or near a station called “Storr,” in the state of Ohio; consequently, under the circumstances, so far as appellee's right of action is concerned, it must be tested by the law of that state. Railway Co. v. Read (at this term) 62 N. E. 488. Each of the paragraphs in controversy discloses that the injury sustained was the result of the negligence of appellee's fellow servants, and was not due in any manner to the negligence of appellant, the common master; hence, when tested by the rule of the common law as recognized and enforced by the decisions of this court, neither of these paragraphs can be said to state a right of action. In the absence of anything shown to the contrary, we are bound to presume that the common law as it prevails in our own jurisdiction is also in force in the state of Ohio, where the accident is shown to have occurred; consequently, no right of action against appellant, under...