Chicago & Erie Railroad Company v. Hamerick

• Court: Indiana Appellate Court
• Writing for the Court: FELT, C. J.
• Citation: Chicago & Erie Railroad Company v. Hamerick, 96 N.E. 649, 50 Ind.App. 425 (Ind. App. 1911)
• Decision Date: 28 November 1911
• Docket Number: 6,980
• Parties: CHICAGO AND ERIE RAILROAD COMPANY v. HAMERICK, ADMINISTRATOR

96 N.E. 649

50 Ind.App. 425

CHICAGO AND ERIE RAILROAD COMPANY v. HAMERICK, ADMINISTRATOR

No. 6,980

Court of Appeals of Indiana

November 28, 1911

Rehearing denied May 17, 1912.

From Wells Circuit Court; Charles E. Sturgis, Judge.

Action by Davis P. Hamerick, as administrator of the estate of William E. McCalley, deceased, against the Chicago and Erie Railroad Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

W. O Johnson, Arthur H. Jones and Ulric Z. Wiley, for appellant.

C. W. Watkins and E. O. King, for appellee.

FELT, C. J., Myers, Hottel, Ibach, Adams and Lairy, JJ., concur.

OPINION

FELT, C. J.

Davis P. Hamerick, as administrator of the estate of William E. McCalley, deceased, brought this action against appellant to recover damages for the death of said decedent alleged to have been caused by the negligence of appellant.

Under the issues joined there was a trial by jury and a verdict for appellee in the sum of $ 3,200. Judgment was rendered on the verdict, from which this appeal is prosecuted.

The errors relied on for reversal challenge the sufficiency of the facts averred in each of the first, second and third paragraphs of the amended complaint, also the overruling of appellant's motion for judgment on the answers to the interrogatories, notwithstanding the general verdict, and overruling the motion for a new trial.

Omitting the formal parts, the first paragraph of the amended complaint, in substance, avers that appellant owns and operates a line of railroad from the city of Chicago, in and through Huntington and Wabash counties, in the State of Indiana, to the city of Erie, in the State of Pennsylvania; that it owns a large number of locomotives, cars, trains, etc., which it operates on said road; that it maintains along its road, side-tracks, switches, stations, platforms, systems of signals and all usual and necessary equipment for the management and operation of such road; that on December 11, 1905, William E. McCalley, appellee's decedent, left Huntington, Indiana, as engineer on engine No. 776, going west, which was the head engine of an extra train running as a double-header; that when said train left Huntington the crew had meeting orders for trains No. 32 and No. 74, east bound, at Bippus, Indiana, the first station west of Huntington; that when said extra train came to the switch at Bippus, the operator at said station called engineer McCalley up main track, and a "Number nineteen train order" was handed on, changing the meeting order for No. 74 from Bippus to Servia, Indiana, which is on defendant's road, and at which place a telegraph operator is placed and provided with signals, blocks, lights, flags, and all things necessary to signal trains; that when said extra train No. 776 arrived at Servia, said McCalley brought his train nearly to a stop some distance east of the switch, and the head brakeman ran ahead to throw the switch, preparatory to heading in on to the siding; that before said brakeman came near the switch, the operator at Servia gave said McCalley a signal, calling him on down main track; that it was the duty and business of said operator, then and there in the employ of defendant, to give proper signals to employes managing and running trains for defendant on its road; that it was then and there the duty and business of said McCalley to obey the signals given him by said operator, and McCalley relied and had a right to rely on the same in running his train; that when said McCalley was called up main track he whistled his brakeman, who, seeing that his train was signaled up main track, stopped and waited for his train; that said McCalley, relying on the block issued to him by said operator, went on down main track, and when within a few rods of the station at Servia, through the darkness, and from the reflection of the headlight on his own engine, he saw train No. 74 standing in front of said depot on the main track; that said McCalley applied his air, reversed his engine, and whistled for brakes, and did everything possible to stop his train, but without success; that a collision occurred between said trains No. 776 and No. 74, and said McCalley was thrown under his engine and killed; that said operator was in the employ of defendant corporation and in charge of the block signals at the station of Servia, and negligently gave to said McCalley, as engineer, a signal calling him up main track, when train No. 74 already had the right of way on the main track, and by reason of his negligence in so doing said engineer was killed, as aforesaid.

It is further averred that appellee is the duly appointed administrator of decedent's estate; that decedent left surviving him Allie M. McCalley, his widow, Alonzo V. and Frank McCalley, his children, aged respectively twenty and thirteen years, who were dependent upon him.

The second paragraph of amended complaint, contains substantially the same averments as the first paragraph, and, in addition thereto, alleges that it was about 5.45 o'clock p. m. when the accident occurred; that it was dark; that train No. 74 was standing on the main track in front of the station at Servia, and the headlight on engine No. 809, drawing said train No. 74, was not burning so as to be visible to the crew of said extra train; that the engineer on train No. 74 was in the service of appellant, and at the time acting in the line of his duty and in charge of the engine drawing said train; that as such engineer it was his duty to have the headlight on his engine burning so as to be visible as a signal to approaching trains; that said McCalley, as soon as he saw train No. 74, made every effort to stop his train, but without success; that by reason of the negligence of the engineer on said train No. 74 in failing to have his headlight burning so as to be visible to the employes on an approaching train, and by reason of said operator giving said McCalley the signal to come down the main track, the latter did proceed on down the main track with his train, which collided with train No. 74, causing his death, by and on account of the negligence aforesaid.

The third paragraph of the amended complaint combines the averments of the first and second paragraphs, and for the purposes of this appeal is the same as the latter.

The sufficiency of each paragraph of the complaint is questioned by demurrer and by independent assignment of error. It is urged that neither paragraph states a cause of action under the common law, and that the facts averred are insufficient to bring the complaint within any of the provisions of the employers' liability act; that it fails to show that appellant owed a legal duty to appellee's decedent which was negligently omitted or performed to his injury.

The objections urged are equally applicable to each paragraph of the complaint. Evidently the pleader has sought to state a cause of action under the statute. Where this is done, facts must be averred which bring the case within the provisions of the statute relied on. Chicago, etc., R. Co. v. Barnes (1905), 164 Ind. 143, 148, 73 N.E. 91.

The specific objection urged against the complaint is that the allegations charging negligence are mere conclusions, and not the averment of facts. This objection is specially urged with great emphasis against the statement that "the operator at Servia gave said McCalley a signal calling him on down main track," also "that it was the duty and business of said operator * * * to give proper signals to employes," and that it was "the duty and business of said McCalley to obey the signals given him by said operator."

Doubtless the form of these averments could be improved, but to say that the engineer was given "a signal calling him on down main track" is not the statement of a conclusion, but of a fact. In railroad business having to do with the operation of trains, to say that a man is given "a signal to stop" or "a signal to back up" or to use other statements of similar import, is not to state a conclusion, but a fact.

Webster defines the word signal to mean "a sign, event or watchword which has been agreed upon as the occasion of concerted action. A sign made for the purpose of giving notice to a person of some occurrence, command or danger." Applying this definition to the business of operating railroad trains, it is apparent that the pleader in a case like this cannot go far in defining the alleged signal and its meaning, without pleading evidence, which is as much condemned by the rules of good pleading as the statement of conclusions instead of facts.

The averments of the complaint show that appellee's decedent, in charge of appellant's engine No. 776, was approaching the station at Servia from the east, under orders to meet another train at that point; that he checked the speed of his engine, and sent his brakeman to throw the switch, preparatory to taking the siding, when he received from the operator a signal, which he answered by sounding the whistle of his engine, and then proceeded down the main track to the front of the station where the collision occurred, resulting in his death. On motion to make the complaint more specific, the court doubtless would have required some additional averments as to the kind and character of the signal given, its meaning and application to the particular case, but as against the demurrer, the complaint is not insufficient for failure to aver additional facts in regard to the alleged signal.

Under the statute, the operator stood in the place of the master and his acts in giving signals to regulate and control the movement of trains, were the acts of appellant. Aided by the other averments of the complaint, the statements "that it was the duty and business" of the...