Chicago, I. & L. Ry. Co. v. Glover
| Decision Date | 11 May 1900 |
| Citation | 154 Ind. 584,57 N.E. 244 |
| Court | Indiana Supreme Court |
| Parties | CHICAGO, I. & L. RY. CO. v. GLOVER. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Greene county; W. W. Moffett, Judge.
Action by Malinda H. Glover, administratrix of William D. Glover, deceased, against the Chicago, Indianapolis & Louisville Railway Company. Judgment for plaintiff, and from an order denying its motion for a new trial defendant appeals. Reversed.
E. C. Field, Wm. S. Kinnan, and Davis & Moffett, for appellant. Brooks & Brooks and S. B. Lowe, for appellee.
This action was brought by appellee against appellant to recover damages for the death of William D. Glover. The decedent was employed by appellant as a conductor of a stone train. His duties were to supply various stone quarries with empty cars to be loaded with stone, and to haul out loaded cars to the main track. At 6 o'clock a. m. on December 15, 1897, the decedent and his train crew left Bedford for their usual day's work. A few minutes after 9 o'clock they coupled engine No. 28 to some cars, and pushed them into the Hallowell quarry. The decedent, his two brakemen, and a boy stepped onto the footboard at the rear end of the engine tank, and the engine was started, running backwards out of the quarry. At a point on the switch about 300 feet from where the cars were left, there was an embankment of dirt, stone, and spalls, from 3 to 5 feet high, and 30 feet long. This embankment sloped downward from the top to the end of the ties at an angle of about 45°. At a point about the center of this embankment the end of the footboard on which the decedent was standing struck a rock or spall, splitting and breaking it, and the decedent either jumped or fell against this embankment, and was so close to the track as to leave no room to escape, and he was run over by the engine and killed. The jury returned a general verdict in favor of appellee, and also answers to special interrogatories. Appellant filed a motion for a new trial, which was overruled, and judgment rendered on the verdict against appellant.
One of the causes assigned for a new trial calls in question the correctness of instruction 12 given to the jury. The instruction reads as follows: “Or if you find from the evidence, by a preponderance thereof, that said engine 28 had a footboard which was negligently constructed by the defendant out of brash, brittle, and unsound timber, and insecurely placed, and that said Glover was using the said engine No. 28, at the time of his injury, in the line of his duty, and was on the said Hallowell switch, and that said engine was in motion, and that he was riding on said footboard, giving due and reasonable attention to the duties of the occasion, and that at that time defendant company had permitted stone, rock, débris of various kinds, to be placed along said track, on either side thereof, for some distance on either side of the point where the accident is charged to have occurred, which stone, rock, and débris were placed within a foot of the rail of said track, and that said rock, stone, and débris formed an embankment of a height of from four to five feet, rising at an angle of forty-five degrees, or thereabouts, and that the defendant company knew such débris, rock, and stone, and embankment were there, and that while the said Glover was so in discharge of the line of his duty, and was riding on said footboard, the same collided with a stone, and that by reason of said footboard being negligently constructed of brash, brittle, and unsound timber, it broke and gave way when it collided with said stone, and that by reason of said breakage and giving way of said board the decedent was thrown or caused to fall over against said embankment, and that said embankment kept him from extricating himself from danger, as he might have done had it not been for said embankment, when he fell against it, causing him to rebound and fall under said engine, and that said engine passed over him, causing him such injury as resulted in his death, and that he was without fault therein, then you should find for the plaintiff.” It was alleged in the complaint that appellant had full knowledge of the defects mentioned in said instruction, and that the decedent had no knowledge thereof. Under the allegations of the complaint, appellee...
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