Chesapeake & O. Ry. Co. v. Russo

• Decision Date: 24 October 1928
• Docket Number: No. 13097.,13097.
• Citation: 163 N.E. 283,91 Ind.App. 648
• Court: Indiana Appellate Court
• Parties: CHESAPEAKE & O. RY. CO. v. RUSSO.

91 Ind.App. 648

163 N.E. 283

CHESAPEAKE & O. RY. CO.

v.RUSSO.

No. 13097.

Appellate Court of Indiana, in Banc.

Oct. 24, 1928.

Appeal from Grant Circuit Court; J. F. Charles, Judge.

Action by Frank Russo, administrator of the estate of Tony Companion, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.Condo & Batton, of Marion, and Albert H. Cole, of Peru, Ind., for appellant.

John H. Kay, of Chicago, Ill., and Henry M. Dowling, of Indianapolis, for appellee.

ENLOE, P. J.

On and for some time prior to June 8, 1925, one Tony Companion was in the employment of appellant as a member of a crew of men working as track repair and track maintenance men, on appellant's main line of interstate railroad. On the day named said crew was working in Grant county, Ind., and near the station of Converse. The derailment and wrecking of a freight train on appellant's road at the place where the men were working caused the death of said Companion, who was the “water boy” to said crew, and this suit was brought by the administrator of his estate to recover damages resultant therefrom. A trial resulted in a verdict and judgment in favor of appellee, from which this appeal is prosecuted.

The appellant first contends that the complaint upon which this case was tried was insufficient, and that the court erred in overruling its demurrer thereto.

[1] The record discloses that before the submission of the cause to the jury, the appellee, by leave of the court, amended the complaint. After this amendment was made, no demurrer was filed to the complaint as amended. There is therefore no question as to the sufficiency of the said complaint before us. Travelers' Ins. Co. v. Martin, 131 Ind. 155, 30 N. E. 1071;Tague v. Owens, 11 Ind. App. 200, 38 N. E. 541.

[2] It is next insisted that the verdict was not sustained by sufficient evidence, and that it was contrary to law. In support of this proposition counsel for appellant say:

“There is no evidence showing that decedent, who was about to carry water for a gang of men who were about to reconstruct appellant's track, was engaged in interstate commerce, or work so closely related to interstate commerce as to be a part of it.”

In this contention we cannot concur. The evidence shows without dispute or controversy that the said “extra gang” was engaged in taking up the old rails of the track of appellant and replacing the same with new rails; that the business of the deceased was to carry water to the men directly engaged in the work of replacing said rails; that he had entered upon his employment on the morning on which he was killed; the records of the appellant company introduced in evidence showed that he had labored three hours on that morning as “water boy.” The question then arises, Is a water boy who carries water to the laborers who are actually engaged in work in furtherance of interstate commerce, and who are therefore under the protection of the federal act (45 USCA §§ 51-59), also entitled to the protection of that act? This “extra gang,” as a whole, was engaged in replacing the rails of appellant's track-taking out the old and putting in the new. This was a work in furtherance of interstate commerce. This work, of necessity, was not all of one kind; some laborer or laborers distributed the spikes, others the plates, others placed the rails, others the bolts necessary to fasten rail to rail, while still others did the work of placing the bolts through the plates and rails and then tightening the same. Each and all were contributing their part towards the accomplishment of the end desired-the laying of a new track to take the place of the old. The deceased was carrying water to these men; he was, in this way, contributing his part towards the accomplishment of the end desired; he had a part in this work the same as the laborer who distributed and laid the new spikes upon the tie where they were to be driven; each of such persons was doing an act which aided other workmen to accomplish their particular task more speedily and we hold that the work of the said deceased, as a water boy, was so intimately connected with interstate commerce as to be a part thereof. See Philadelphia, etc., R. Co. v. Smith, 250 U. S. 101, 39 S. Ct. 396, 63 L. Ed. 869.

It is next urged that as the deceased was a member of this repair gang, he knew of the alleged dangerous and defective condition of the track and therefore assumed the risk of injury.

There is evidence in this record which is sufficient to sustain a finding of the following facts: That at the place where the derailment of the said train occurred there was a curve in the track of appellant; that at said point the track of appellant passed under a viaduct carrying the tracks of the Pennsylvania Railroad, and supported by stone pillars on either side; that in furtherance of the work of said extra gang the spikes had been removed from every other tie; that many of the ties were old and rotten; that the train which was derailed consisted of 56 loaded cars and a caboose; that the deceased had no part in the work of drawing the spikes from the rails, or in removing from thereunder any ties, or that he knew that some of the said ties remaining under the rails were old and rotten. There is no evidence that he knew the extent to which the spikes had been removed from the rails and ties. His work was to carry water to the men, and in doing this work he was not called upon to inspect the track and to observe and know its condition as to these matters. There is also evidence that at a point some distance to the east of the place where these men were working there had been placed a signal flag or warning to the engineer to “slow down” his train. This was a permanent “slow board” for this curve and viaduct, and the evidence in this case is ample to sustain a finding that the engineer in charge of said train disregarded said “slow board” and...