Chicago & Erie Railroad Company v. Dinius
| Decision Date | 20 March 1908 |
| Docket Number | 21,073 |
| Citation | 84 N.E. 9,170 Ind. 222 |
| Court | Indiana Supreme Court |
| Parties | Chicago & Erie Railroad Company et al. v. Dinius |
From Wabash Circuit Court; A. H. Plummer, Judge.
Action by Clark W. Dinius against the Chicago & Erie Railroad Company and another. From a judgment on a verdict for $ 7,250 for plaintiff, defendants appeal.
Reversed.
Charles A. Schmettau, U. Z. Wiley, A. Braden Clark, Clarence Brown Warren G. Sayre, W. O. Johnson, George C. Gale, W. G. Todd and Kenner, Lucas & Kenner, for appellants.
M. L Spencer, W. A. Branyan, H. B. Shively and F. O. Switzer, for appellee.
This action was commenced in the Huntington Circuit Court by appellee to recover for personal injuries sustained by him on account of the alleged negligence of appellants herein, the Chicago & Erie Railroad Company and the Toledo, St. Louis & Western Railroad Company. The venue of the cause was changed to the Wabash Circuit Court. Each of the defendants separately demurred to the complaint on the ground of insufficiency of facts therein alleged. These demurrers were overruled and proper exceptions reserved by the respective defendants. The defendants answered separately by the general denial. The cause upon the issues was tried by jury and a general verdict returned in favor of the plaintiff, assessing his damages at $ 7,250. Along with the general verdict the jury returned answers to a series of interrogatories. The defendants separately moved for judgment in their favor on the interrogatories and also filed separate motions for a new trial and in arrest of judgment, all of which motions were denied and exceptions reserved. The court then rendered judgment on the verdict. Separate assignments of errors are predicated by appellants on each of the adverse rulings of the lower court.
The first question for our consideration is the sufficiency of the complaint. It is alleged therein "that on March 4, 1904, and for a long time prior thereto, and ever since, the defendant Chicago & Erie Railroad Company has owned and operated a railroad for hire, with passenger- and freight-cars, drawn by locomotives propelled by steam, from Chicago, Illinois, to Marion, Ohio, which line of railroad passes through Huntington county in the State of Indiana, and through Van Wert county in the state of Ohio, and that said Toledo, St. Louis & Western Railroad Company is a corporation duly organized and operating under the laws of the states of Ohio, Indiana, Illinois and Missouri; that on March 4, 1904, and for a long time prior thereto, and ever since, it has owned and operated a railroad for hire, with passenger- and freight-cars, drawn by locomotives propelled by steam, from Toledo, Ohio, to St. Louis, Missouri, which line of railroad passes through Huntington county in the State of Indiana, and through Van Wert county in the state of Ohio; that the tracks of said railroad companies cross each other at Ohio City in Van Wert county, Ohio; that there is a switching yard in the eastern part of said town of Ohio City, in connection with and as a part of the Chicago & Erie Railroad Company's track, and a 'Y' extending therefrom to, and uniting with, the track of the Toledo, St. Louis & Western Railroad Company's track; that such 'Y' is built upon a roadbed which is upon land and territory owned by the Chicago & Erie Railroad Company, and that such 'Y' and other portions of such track hereinafter named are constructed with, and consist of, cross-ties, rails, and frogs placed upon the roadbed, which roadbed was constructed by the Toledo, St. Louis & Western Railroad Company, and such rails, frogs and ties were placed thereon and are maintained, together with such roadbed, by the Toledo, St. Louis & Western Railroad Company; that the Toledo, St. Louis & Western Railroad Company, prior to March 4, 1904, and on said date, and continuously ever since, has jointly occupied, maintained and used said 'Y' and said track with the Chicago & Erie Railroad Company, by virtue of a lease held by said Toledo, St. Louis & Western Railroad Company from said Chicago & Erie Railroad Company; that prior to March 4, 1904, and on said date, and ever since, each of said defendant railroad companies has had a traffic arrangement by virtue of a contract between them, and that they were at that time, and prior thereto, each switching and operating over and along their switches in said yard at Ohio City, and over and along said 'Y' hereinbefore mentioned, and side- and delivery-tracks, and that said traffic arrangement aforesaid was in full force and effect and under actual operation on March 4, 1904; that this plaintiff on March 4, 1904, was regularly employed by the defendant Chicago & Erie Railroad Company as brakeman on one of the freight-trains, and was running from Marion, Ohio, to Huntington, Indiana, on said road; that at the town of Ohio City in Van Wert county, Ohio, while this plaintiff was so employed and in the line of his duty, and while working with one of the crews, consisting of a locomotive engineer, freight-train conductor, and other brakemen in the employ of the Chicago & Erie Railroad Company, and while attempting to make a coupling between two freight-cars on the Chicago & Erie Railroad Company's delivery- and side-track in the eastern part of the switch yard--said delivery- and side-track leads onto, and is a part of, the 'Y' hereinbefore described--and while the car on the east side, namely, Chicago & Erie Railroad Company's car No. 72,470, was standing still, and the car on the west side, namely, Chicago & Eastern Illinois Railroad Company's car No. 60,407, was backing up towards the east, the latter car being propelled by a locomotive, which locomotive was then and there operated by the Chicago & Erie Railroad Company, a part of the chain on the lever which operated the coupling of the eastern car, namely, the car herein first-above mentioned, was absent, and such coupling could not be operated with the lever, and it became an emergent necessity, in order to make such coupling, to operate same on the car backing up, and the lever on the car backing up was on the opposite side of the car from where plaintiff was standing, and, in order to operate the coupling on the car backing up, plaintiff was compelled to go to the opposite side of the track from where he was standing; that for such purpose he attempted to cross the track, and in so doing he stepped upon the end of one of the cross-ties of the track; that his foot slipped off of the tie and onto a low place between the cross-ties, and he fell to the ground within the rails and into one of said low places between the cross-ties; that he attempted to extricate himself immediately, and to move and roll his body forward and off the track, if possible, he not having time to rise, the moving car being so close to him; that on account of being in said low place between the cross-ties, he was unable to remove his person, that is, to roll away and get off of the track, and was caught by the moving car then backing up, and his left hip was dislocated and the foot of the right leg was cut off in the region of the ankle by the wheels of one of the trucks of the moving car passing over his ankle; that the track upon which this alleged injury occurred, at the spot where plaintiff fell, and for ten feet on each side thereof, was not properly ballasted and filled with gravel, cinders or other substance, so that six inches of cross-ties below the bottom of the rails were exposed, and that there were large, deep and wide-open spaces between the cross-ties, and that such track had been in such condition for a long time, to wit, three months, and that the defendants and each of them had knowingly, negligently and carelessly suffered and permitted said ties and track at the point where said injury occurred on said 'Y' and delivery- and side-track as herein described, to remain in said condition for a period of three months as aforesaid, prior to the happening of said injury."
The complaint then alleges that there was a traffic arrangement or contract between the two companies, under which it became the duty of each severally, and both jointly to keep said roadbed ballasted between said cross-ties at such point of accident in a proper and safe condition for its employes to work over and upon; that at the place where plaintiff fell, as aforesaid, and was injured, there was much switching done by both of said defendants, and that on account of much traffic and frequent hitching and unhitching, changing and switching cars, it required the employes of each of the defendants daily, and often many times a day to traverse said place, where plaintiff fell; that, on account of the lack of filling and ballasting of said roadbed at the point where plaintiff fell and was injured, and for ten feet along each side thereof, and the wide, open, deep places between the cross-ties, as aforesaid, such track was very dangerous at said point where brakemen in the employ of each of said defendants in coupling and uncoupling and switching cars were required to traverse; that, "on account of such holes and open places, as aforesaid, being carelessly and negligently left there and thus by the defendants and each of them, he, the plaintiff, fell into the open place aforesaid, and on account of the lack of ballasting and on account of the low place aforesaid he could not remove himself therefrom in time to avoid the injury aforesaid, and thereby and on account of which ...
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Chicago & E.R. Co. v. Dinius
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