Chicago & Erie Railroad Company v. Dinius

• Decision Date: 17 December 1913
• Docket Number: 21,665
• Parties: Chicago and Erie Railroad Company et al. v. Dinius
• Court: Indiana Supreme Court

103 N.E. 652

180 Ind. 596

Chicago and Erie Railroad Company et al. v. Dinius

No. 21,665

Supreme Court of Indiana

December 17, 1913

From Wabash Circuit Court; Charles A. Cole, Judge.

Action by Clark W. Dinius against the Chicago and Erie Railroad Company and another. From a judgment for plaintiff, the defendants appeal.

Affirmed.

W. O Johnson, C. R. Lucas, Walter G. Todd, U. Z. Wiley, A. H Jones, Charles A. Schmettan, Guenther & Clark, Clarence Brown and Warren G. Sayre, for appellants.

W. A Branyan, F. O. Switzer and U. S. Lesh, for appellee.

OPINION

Cox, J.

Appellee recovered a judgment in this action against both appellants for injuries sustained by him while performing the duties of brakeman in the service of appellant, Chicago and Erie Railroad Company, on a track jointly used by it and appellant, Toledo, St. Louis and Western Railroad Company. In the trial below, the record shows these railroads were, for the sake of brevity, designated respectively as the "Erie," and the "Clover Leaf," and will be so termed in the consideration of this appeal. Appellants suffered a defeat in a former trial and appealed to this court from a judgment therein rendered against them, and here the judgment was reversed with instructions to sustain the demurrers of appellants to the complaint. Chicago, etc., R. Co. v. Dinius (1908), 170 Ind. 222, 84 N.E. 9, 84 N.E. 9. When the cause was remanded appellee filed an amended complaint in two paragraphs and the judgment before us now for review is the result of a trial thereon.

Preliminary to many questions presented for consideration the Clover Leaf railroad company urges a question of jurisdiction. The action was begun in Huntington County against the Erie railroad company alone. Both railroads ran into and had offices in that county. A change of venue was taken by appellee to Wabash County, a territory occupied by the Erie but not by the Clover Leaf. There the latter railroad was made a party and summons was issued to an adjoining county and served upon it there. It not appearing on the face of the complaint, the question of jurisdiction over the person of the Clover Leaf railroad company was raised by plea in abatement to which the appellee addressed a demurrer which was sustained. This action of the court, it is contended, was error. A review of the question is foreclosed. The same question was involved in the former appeal, presented by the record and urged in the brief of the Clover Leaf railroad company. A second appeal brings up for review and decision nothing but the proceedings subsequent to the reversal. Thereafter all questions presented by the first record will be considered as finally determined by the judgment of this court. All such questions not expressly affirmed or reversed, will, by implication, be deemed affirmed. Dodge v. Gaylord (1876), 53 Ind. 365; Stevens v. Templeton (1910), 174 Ind. 129, 91 N.E. 563; Ohio Valley Trust Co. v. Wernke (1912), 179 Ind. 49, 99 N.E. 734. This question, however, seems to have been decided against the contention now made by appellant in Chicago, etc., R. Co. v. Marshall (1906), 38 Ind.App. 217, 75 N.E. 973.

Demurrers were addressed to each paragraph of the amended complaint by each of the appellants which were overruled by the court. These rulings are the bases of separate assignments of error. Omitting formal and preliminary averments the first paragraph of this complaint alleges "That said roads and lines of said railroad companies intersect and cross each other at Ohio City, in Van Wert County, in the State of Ohio, and that there is a switch yard in the east part of said town of Ohio City; that each of said railroad companies have in said switch yard a delivery track which delivery tracks parallel the main line of the Chicago and Erie Railroad Company; that each of said railroads has a cross-over track running from their main lines to the delivery track; that in said switch yard there is also a wye uniting the lines of said railroad tracks and said delivery tracks; that there was a short space of track used in common by both of defendant companies in said switch yard on the 4th day of March, 1904, and continuously prior thereto for three months or more at the intersection of said wye and the delivery track of the Chicago and Erie Railroad Company and the delivery track of the Toledo, St. Louis and Western Railroad Company, over which space of track as aforesaid both of said companies must move and did move and bring cars to and from both of said delivery tracks to the main line of each railroad company's tracks and to said wye aforesaid; that said companies each carelessly and negligently neglected to ballast said space of track so used in common as aforesaid and carelessly and negligently left the space between the ties in said portion of track open, on the 4th day of March, 1904, and three months immediately prior thereto. That each of said companies knowingly left such space of track so used in common as aforesaid in such condition, that the same was dangerous and unsafe for the switchmen of each of said companies to work over and along such portion of track; that it was in said portion of track so used in common that the plaintiff was hurt and received the injury as in this paragraph of complaint elsewhere more fully alleged; that said switch yard on each side of said portion of track so used in common was properly ballasted and made safe for the employes of said companies to work over and along so that there was nothing to warn or lead the employes of said company and this plaintiff to know or suspect that the space of track so used in common was left in the unballasted and dangerous condition aforesaid; that such wye and the delivery tracks and the space of track so used by said railroad companies in common are built upon roadbeds which are upon the lands and property owned by the Chicago and Erie Railroad Company and are constructed with and consist of cross-ties, rails and frogs upon the roadbed, which roadbed was constructed by the Toledo, St. Louis and Western Railroad Company, and such rails, frogs and ties were placed and maintained together with such roadbed by the Toledo, St. Louis and Western Railroad Company, a map fully showing and describing the tracks, switch yards, delivery tracks, wye and said place of road so used in common by said companies at the town of Ohio City is filed herewith and made a part of this paragraph of complaint and marked Exhibit 'A'; that said railroad companies have both for three months prior to the 4th day of March, 1904, and on said date and continuously ever since, jointly occupied, maintained and used said space of track between said wye and said delivery tracks in common by virtue of a lease held by the Toledo, St. Louis and Western Railroad Company from the Chicago and Erie Railroad Company and that during said time said railroad companies have had traffic arrangements by virtue of a written contract existing between them, and were at said date, to wit: on the 4th day of March, 1904, and for a long time prior thereto and since, each switching and operating cars over and along their switches in said Ohio City and over and along said wye and over such space of track hereinbefore described connecting said wye with said delivery tracks; that said traffic arrangements aforesaid were in full force and effect and under actual operation on the 4th day of March, 1904. Plaintiff further avers that on the 4th day of March, 1904, he was regularly employed in the capacity of a brakeman by the defendant, the Chicago and Erie Railroad Company on one of its freight trains then being operated over its said line from Marion in the State of Ohio, to Huntington in the State of Indiana; that when said freight train arrived at the town of Ohio City in the county of Van Wert in the State of Ohio and while this plaintiff was so employed and was a member of the crew of said freight train, said freight train was run into said switch yard, and it became the duty of this plaintiff as such employe of the said Chicago and Erie Railroad Company and a member of the crew on said train, to make a coupling between two freight cars on the delivery track of the Chicago and Erie Railroad Company, being elsewhere described, which cars to be so coupled were car No. 73,470 which was then standing still on the Chicago and Erie delivery track and a certain Chicago and Eastern Illinois car No. 60,407, the situated west of said Erie car and was being backed up by the employes and agents of the said Chicago and Erie Railroad Company eastward toward the said Erie car No. 73,470; that at said time said Chicago and Eastern Illinois car was being propelled by a locomotive which locomotive was then and there operated by said Chicago and Erie Railroad Company; that at said time a part of the chain on the lever which operated the coupling on the car, being the first car hereinabove mentioned, was absent and by reason thereof such coupling could not be made with the lever thereon and it became an emergent necessity in order to make such coupling to operate the lever on the car backing up, being said latter-named car; that there was a lever on said last described car and which was then backing up on the opposite side of such car from where plaintiff was situated and which lever it was necessary for plaintiff to move in order to effect such coupling and he was thereupon compelled to go to the opposite side of the track from where he was standing to reach such lever; that at said time said cars and the plaintiff were so situated that the convenient point for plaintiff to cross over the track on which said cars were situated so as to be on the proper side for making such coupling was where the track was owned and used in...