Chicago and Erie Railroad Company v. Branyan

• Decision Date: 19 April 1894
• Docket Number: 1,166
• Citation: 37 N.E. 190,10 Ind.App. 570
• Parties: CHICAGO AND ERIE RAILROAD COMPANY v. BRANYAN, ADMINISTRATOR OF SIMONS
• Court: Indiana Appellate Court

37 N.E. 190

10 Ind.App. 570

CHICAGO AND ERIE RAILROAD COMPANY v. BRANYAN, ADMINISTRATOR OF SIMONS

No. 1,166

Court of Appeals of Indiana

April 19, 1894

Petition for a rehearing overruled Sep. 21, 1894.

From the Huntington Circuit Court.

Judgment affirmed.

O Gresham and J. B. Kenner, for appellant.

J. C Branyan, M. L. Spencer and W. A. Branyan, for appellee.

OPINION

DAVIS, C. J.

A demurrer was sustained to the first paragraph of the complaint. The second paragraph was withdrawn during the trial.

This leaves the case standing upon the third paragraph, which we set out in full:

"The plaintiff, William A. Branyan, Administrator of the estate of Charles W. Simons, deceased, for a further and third paragraph of his complaint, complains of the Chicago and Erie Railroad Company, and says that defendant is now, and was on the 11th day of June, 1891, a corporation, owning and operating a line of railroad through the county of Huntington, in said State, and doing the business of a common carrier between the cities of Marion, Ohio, and Chicago, Illinois, and employing in her service in said business and in the repair and maintenance of her said road a large number of persons.

"Plaintiff further avers that it was then and there the duty of said corporation to furnish to said employes suitable, safe and substantial cars, locomotives and other appliances to protect said employes from danger in life and limb.

"Plaintiff further avers that decedent was on the said 11th day of June, 1891, a young man of nineteen years of age, intelligent, strong and athletic in person, in vigorous and robust health, capable of earning two and a half dollars per day, and was then and there in the employ and service of said defendant, and was then and there doing for said defendant valuable work and service.

"Plaintiff further avers that said decedent was foreman of what was known and designated as the derrick car,' wherein it was his duty to use said car in making repairs upon and along the line of defendant's said road, at different places, as directed by defendant and her agents.

"Plaintiff further avers that said derrick car' was drawn and propelled by a locomotive, and was constructed of wood and iron, and carried upon trucks or wheels placed thereunder, and was in length about forty feet, and was constructed of beams or sills, upon which was a tight floor, covering and concealing the beams and timbers thereunder, upon one end of which car was the derrick used for lifting, moving, and placing heavy timbers, iron, and stone, and that said floor was nailed upon said sills or stringers, and that the same concealed the machinery and the timbers under said floor so that its character might not be readily seen by those working upon said car.

"Plaintiff further avers that said car was so furnished to decedent by defendant, and he was placed thereon and directed by defendant to operate the same and direct the men employed thereon by defendant in the management thereof, in making repairs upon defendant's line of railroad.

"Plaintiff further avers that, being then and there in the discharge of his duty, and in obedience to the directions of the defendant, and in the discharge of duty in his line of employment, and without fault on his part, and without knowledge of any defects in said machinery, and without opportunity of knowing that the same was defective, unsafe, and dangerous, he, the decedent, on said 11th day of June, 1891, at the city of Huntington, was upon said derrick car,' when the same, by reason of latent defects, rotten and decayed timbers, and defective brakes upon said car, and other defects in and about said car, the same broke, tore, and was rent asunder while in motion, and he, the said Simons, endeavoring to save and protect his life, was caught in said breaking, splitting and crashing debris of said car, and crushed, bruised, maimed, and mutilated to such an extent that within forty-eight hours thereafter, he died from said injuries then and there received.

"Plaintiff further avers that said defendant was guilty of gross negligence in furnishing to said decedent said defective car, implements and appliances in this, that the beams thereof, the stringers, and frame work supporting said floor, and that were intended to hold said car upon the trucks, had become rotten, brittle and insufficient to hold the same upon the trucks thereunder, and that the same broke loose from said trucks, tore apart, broke down and went to pieces under decedent; and that said defendant well knew, or with proper inspection could have known, prior to said wreck, that the same was so rotten, brittle, unsafe, and dangerous to all of her employes working therewith and thereupon.

"And plaintiff further avers that the death of decedent was not caused by any act of negligence on his part or on the part of any of his co-employes upon said car or locomotive.

"Plaintiff further avers that decedent left surviving him, as his heirs at law, his father, Morris T. Simons, and as his brothers, John A. Simons, Robert Simons, and Harry Simons, and his sisters, Edna B. Felter, Dessie McLinn, and Gertrude Simons.

"Plaintiff further avers that said Charles W. Simons died intestate, and that prior to the commencement of this suit this plaintiff was appointed administrator of his said estate.

"Plaintiff further avers that by reason of the said wrongful acts and carelessness and negligence of said defendant, in causing the death of decedent, the heirs of said decedent were wronged, injured and damaged in the sum of ten thousand dollars.

"Wherefore, plaintiff prays judgment against said defendant in said sum of ten thousand dollars, and for costs and all relief proper in the premises."

A demurrer was overruled to this paragraph. An answer of general denial was filed, and on trial by a jury the following special verdict was returned:

"We the jury, having been directed by the judge of said court to make and return a special verdict in this cause, do find from the evidence the following facts in this our special verdict, to wit:

"First. That the defendant, the Chicago and Erie Railroad Company, was, on the 11th day of June, 1891, and has ever since been and now is a corporation, owning and operating a line of railroad through the county of Huntington, in the State of Indiana, and was and is doing the business of a common carrier on its railway, running between the cities of Marion, Ohio, and Chicago, Illinois, and during said period was employing in its services in said business, and in keeping in repair and maintaining its road, a large number of persons.

"Second. That said defendant was furnishing during said time to said employes, in the discharge of their duties, cars, locomotives and other appliances to perform labor for it in its said business and in maintaining and repairing its said road, and in the operation of the same.

"Third. That Charles W. Simons, plaintiff's decedent, was, on the 11th day of June, 1891, a young man of nineteen years of age, intelligent, strong and athletic in person, in vigorous and robust health, capable of earning one dollar and fifty cents per day over and above his expenses in living and clothing, and was then and there in the employ and service of said defendant, and was then and there doing for said defendant valuable work and service, and was receiving therefor two dollars and twenty-five cents per day as foreman of what was known and designated as the derrick car,' wherein it was his duty to use said car in making repairs on and along the line of defendant's said road, at different places, as directed by defendant and her agents.

"Fourth. That said derrick car was drawn and propelled by a locomotive on defendant's tracks, which car was constructed of wood and iron, and carried on trucks or wheels placed thereunder, and was in length about thirty-three feet, and was constructed of beams or sills, upon which was a tight floor covering and concealing the beams or timbers thereunder; upon one end of which car was the derrick used for lifting, moving, or placing heavy timbers, iron or stone, and that said floor was nailed upon said sills or stringers and that said floor concealed the machinery and timber under said floor so that its character might not be readily seen by those working upon said car, to determine its strength and durability; which car was so delivered to decedent by defendant, and he was placed thereon and directed by defendant to operate the same and direct the men employed thereon by defendant in the management thereof in making repairs on defendant's line of railroad.

"Fifth. That the said Charles W. Simons being then and there on said day, or the evening of said day in the discharge of his duty, and in obedience to the directions of the defendant, in the line of his employment, and without fault on his part and without knowledge of danger from any defects in the machinery or construction of said car, and without opportunity of knowing of any defective, unsafe and dangerous material in said car while operating the same at the city of Huntington, Indiana, said car, by reason of latent defects, rotten and decayed timber and defective brakes on said car, and other defects in and about said car, the same broke, tore and was rent asunder while in motion, and he, the said Simons, being upon said car, endeavoring to save and protect his life, was caught in said breaking, splintering and crashing debris of said car and the trucks thereof, and was crushed, bruised, maimed and mutilated in his body to such an extent that within forty-eight hours thereafter he died of and from said injuries then and thereby received.

"Sixth. We further find that said defendant was guilty of gross negligence in...