Cent. Indiana Ry. Co. v. Mitchell

• Decision Date: 27 January 1936
• Docket Number: No. 14999.,14999.
• Citation: 102 Ind.App. 121,199 N.E. 439
• Parties: CENTRAL INDIANA RY. CO. v. MITCHELL.
• Court: Indiana Appellate Court

102 Ind.App. 121

199 N.E. 439

CENTRAL INDIANA RY. CO.

v.MITCHELL.

No. 14999.

Appellate Court of Indiana, in Banc.

Jan. 27, 1936.

Appeal from Tipton Circuit Court; Glen J. Gifford, Judge.

Action by Fred C. Mitchell against the Central Indiana Railway Company and another. From a judgment for plaintiff and an order refusing a new trial, named defendant appeals.

Affirmed.

Arthur A. Beckman, of Anderson, for appellant.

Cloe, Campbell, Cloe & Cloe, of Noblesville, for appellee.

WIECKING, Judge.

This was an action below by appellee as plaintiff, against Central Indiana Railway Company, appellant, and one Harry Sinnott, as codefendants, in which damages were sought for personal injuries by reason of a collision at an intersection between the railroad tracks of the defendant company and a public highway in Hamilton county, Ind., in which the plaintiff was injured. The cause was tried upon the second amended complaint of appellee in two paragraphs, the first of which detailed the circumstances of the collision, alleged the employment of the appellee by the appellant, and that appellant had rejected the provisions of the Indiana Workmen's Compensation Act (Burns' Ann.St.1933, § 40-1201 et seq.). The second paragraph of amended complaint, after alleging the same facts as to the collision and the employment, alleged that the appellee and appellant were engaged in interstate commerce at the time of the injury complained of and negatived respectively any contributory negligence or assumption of risk by the appellee. To this amended complaint the defendant Sinnott filed an answer in general denial, and the appellant filed an answer in three paragraphs, the first in general denial, the second alleging that at the time and place complained of that the appellant was engaged in the operation of a steam railroad in interstate commerce and that appellee was the employee of the appellant and was engaged in interstate commerce and that appellee was guilty of contributory negligence; the third paragraph of answer, after alleging the same facts as to the parties being engaged in interstate commerce, proceeds on the theory of assumption of risk by appellee. The appellee filed a reply in general denial to the second and third paragraph of answer of the appellant which closed the issues. Before filing answers the appellant had filed a motion to make the second paragraph of amended complaint more specific, which was overruled; a motion to strike out parts of the appellee's second paragraph of amended complaint, which was overruled; and a demurrer to the second paragraph of amended complaint, which was also overruled. No election was forced by the appellant as to the two paragraphs of complaint. The cause was tried before a jury, which returned a general verdict for the appellee and against both defendants in the sum of $7,000 and likewise returned into court answers to seventeen interrogatories propounded to the jury by the appellant. The appellant then filed a motion for judgment upon the answers to the interrogatories, which motion was overruled, and then filed its motion for new trial setting up twenty-eight reasons therefor. The reasons assigned here for reversal are: (1) The action of the court in overruling the appellant's motion to make the second paragraph of amended complaint more specific; (2) the action of the court in overruling appellant's motion to strike out parts of the second paragraph of amended complaint; (3) the action of the court in overruling appellant's demurrer to the second paragraph of amended complaint; (4) the action of the court in overruling appellant's motion for judgment upon the answers to the interrogatories propounded to the jury; and (5) overruling appellant's motion for new trial.

The evidence in this cause establishes the following facts: That the appellee was employed by appellant Central Indiana Railway Company as a section hand and on the day the accident happened had been engaged with one Gascho in collecting débris and piling it along the right of way for burning. Some time during the morning the rest of the crew in charge of the foreman came along on a gasoline propelled motorcar of the appellant and picked up the two men. It had begun to mist or rain. As they approached a highway crossing known as the “Hazel Dell Crossing” from the west at a place where the railroad tracks ran east and west, they could see an automobile approaching from the south driven by the defendant Sinnott. At this crossing the view of the automobile driver from 100 to 150 feet south of the tracks along the railroad to a point 150 to 200 feet west of the crossing is unobstructed. The railroad tracks from the west to the crossing are slightly downgrade. The evidence discloses that the power had been shut off the motorcar at a point about 1,200 feet west of the crossing, that the motorcar was coasting, approaching the intersection at a speed of from 15 to 25 miles per hour, and the defendant Sinnott was approaching from the south at a speed of about 15 miles per hour. Sinnott had a Mr. Douglas riding with him and they were talking. He lived in the neighborhood and knew about the railroad crossing. The day was rainy and the windshield and side windows of the car were misty, and he kept wiping them to see out. As he approached the track he slowed down to about 10 miles an hour but did not stop until after the collision. Just as he entered the crossing he was wiping his window to look out, when the collision occurred. The foreman in charge of the motorcar and the men on it saw the automobile when they were about 100 feet west of the crossing. When about 60 or 75 feet west of the crossing most of the men jumped up and started yelling to attract Sinnott's attention. At a point 30 feet west of the crossing two men jumped off the motorcar. The appellee was riding on the front of the motorcar on the south side. That the appellant's foreman in charge of the motorcar had it under control and could have stopped before it got to the crossing. There is some conflict in the evidence as to the speed of the automobile and the speed of the motorcar as they approached the crossing and as to which vehicle was first on the crossing, but a collision did occur which threw the appellee from the motorcar and fractured his leg in seven places. He was taken to a hospital in Noblesville by Sinnott and was in the hospital for some thirteen weeks, a great part of the time with his leg in a cast. The medical evidence shows a shortening of that limb of about three-quarters of an inch, a limitation of motion of about 25 per cent., and some atrophy of the muscles of the limb. At the time of the accident the appellee was earning $18.23 per week, he was 44 years of age, and his expectancy of life was over 25 years.

As pointed out supra, the appellant did not force an election by the appellee and the case was tried upon both paragraphs of amended complaint. No question was raised by any motion or demurrer of the appellant to the first paragraph of complaint. The evidence clearly establishes that the appellant had rejected the provisions of the Indiana Workmen's Compensation Act. Section 10 of that act, being section 40-1210 of Burns' Annotated Statutes (1933) Indiana; Baldwin 1934, § 16386, is as follows:

“40-1210 (9455). Defenses to employer not operating under act.-Every employer, except as provided in section eighteen (§ 40-1218), who elects not to operate under this act shall not in any suit at law by an employee to recover damages for personal injury or death by accident be permitted to defend any such suit at law upon any one or all of the following grounds:

“(a) That the employee was negligent;

“(b) That the injury was caused by the negligence of a fellow employee;

“(c) That the employee had assumed the risk of the injury. (Acts 1929, ch. 172, § 10, p. 537.)”

The first paragraph of amended complaint proceeds upon the theory of a common-law action for negligence, and in view of the above statute, the second and third paragraphs of answer could not apply as defenses to the first paragraph of amended complaint.

[1] The verdict of the jury is a general verdict. The answers to the interrogatories indicate that the appellee was not engaged in interstate commerce at the time the collision occurred, and if this fact is supported by the evidence, the presumption must be that the verdict of the jury was founded upon the first paragraph of amended complaint. This being true, any error of the court in overruling the motion to make the second paragraph of amended complaint more specific, in overruling the motion to strike out parts of the second paragraph of amended complaint, or in overruling the demurrer to the said second paragraph of amended complaint, was harmless error. Laughery Turnpike Co. v. McCreary (1896) 147 Ind. 526, 46 N.E. 906;Robinson v. Dickey (1896) 143 Ind. 205, 42 N.E. 679, 52 Am.St.Rep. 417;Miller et al. v. Rapp (1893) 135 Ind. 614, 34 N.E. 981, 35 N.E. 693;Cincinnati, etc., R. Co. v. Cregor, Adm'x (1898) 150 Ind. 625, 50 N.E. 760;Laramore v. Blumenthal (1915) 58 Ind.App. 597, 108 N.E. 602.

[2][3] The uncontradicted evidence in this case is that on the day in question the only duty of the appellee had been the collection of trash and débris along the right of way of the appellant company and piling it for the purpose of burning.

The true test laid down by the courts of this state is found in the case of Cleveland, etc., Ry. Co. v. Ropp (1921) 190 Ind. 115, 129 N.E. 475, 478, where it is stated as follows: “Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?” (Our Italics.)

The appellant relies upon the case of Pederson v. Delaware, etc., R. Co. (1913) 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153, to sustain its contention that the appellee was engaged in interstate commerce. In the Pederson Case the employee...