Chicago & E.I.R. Co. v. Stephenson

• Decision Date: 15 December 1903
• Citation: 69 N.E. 270,33 Ind.App. 95
• Parties: CHICAGO & E. I. R. CO. v. STEPHENSON.
• Court: Indiana Appellate Court

33 Ind.App. 95

69 N.E. 270

CHICAGO & E. I. R. CO.

v.STEPHENSON.^*

Appellate Court of Indiana, Division No. 2.

Dec. 15, 1903.

Appeal from Circuit Court, Clay County; S. D. Coffey, Special Judge.

Action by Malinda J. Stephenson, as administratrix of the estate of Frederick B. Stephenson, deceased, against the Chicago & Eastern Illinois Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.George A. Knight, for appellant. W. J. Beckett and Elliott, Elliott & Littleton, for appellee.

ROBY, J.

The complaint was in one paragraph, to which appellant's demurrer for want of facts was overruled. The action was brought by appellee, as administratrix of the estate of Frederick B. Stephenson, to recover damages on account of the alleged negligence of appellant, causing the death of said Stephenson, and for the benefit of his next of kin. Trial by jury. Verdict, with answers to interrogatories. Motion for new trial overruled. Judgment on verdict for $1,600. Error is assigned upon each adverse ruling of the court.

The complaint shows that appellant's line of railroad was intersected by the line of the Indiana, Decatur & Western Railroad Company at Hillsdale, Vermilion county, and that a Y track had been constructed at said place for the joint use of said companies; that the decedent was a locomotive fireman in the employment of the Indiana, Decatur & Western Railroad Company; that the engine on which he was working was coupled to four cars, and was standing on the west part of the Y; that a cut of four other cars stood about a car's length east thereof; that one of the duties of decedent's employment was to clean out the ash box of the engine; that, in performing such duty, he was, at the time of his death, under the engine, and that he could not discharge such duty in any other way; that the brakes were set upon the locomotive and cars; that they were stationary, and could not be “removed” without some great force coming against them; that appellant had no duty to perform with regard to, and no right to move or strike, said locomotive and cars, as decedent knew; that it backed a locomotive and several cars in on said Y track from the east, and negligently struck the detached cars aforesaid with force and violence, causing them to strike, and to run the engine 20 feet west, and over decedent, engaged as aforesaid, thereby killing him. The objection made to the complaint in that it does not show appellant to have been guilty of any breach of duty to decedent which was the proximate cause of his death, and that it shows on its face that he was guilty of contributory negligence in going under the locomotive, and in failing to take precautions for his own safety. The averments of the pleading show decedent to have been at a place where he had a right to be in the line of his employment, and they show that his death was caused by the movement of the engine and cars, with respect to which appellant was negligent. It was not necessary to negative contributory negligence, although the complaint does contain averments to that effect. Section 359a, Burns' Rev. St. 1901. It is not averred that no precautions were taken by decedent to protect himself, nor does the pleading purport to declare the conditions bearing upon the question. Pittsburgh v. Martin, 157 Ind. 219, 61 N. E. 229;Southern Indiana R. Co. v. Peyton, 157 Ind. 690-694, 61 N. E. 722. The courts certainly cannot say, as a matter of law, that a railway employé is negligent per se in going under an engine to do work devolved upon him by his employment, which cannot be otherwise done. The engine of the Indiana, Decatur & Western Company is averred to have stood at one end of the union track. Appellant, having no right to move or strike it, and no duty to perform with regard to it, struck it with sufficient force to drive it westward, with set brakes, a distance of 20 feet. It owed the duty to those lawfully using the track of using ordinary and reasonable care to avoid injuring them. McMarshall v. Chicago, etc., R. R., 80 Iowa, 757, 45 N. W. 1067, 20 Am. St. Rep. 445;Cleveland, etc., R. Co. v. Gray, 148 Ind. 266, 46 N. E. 675. Had the Indiana, Decatur & Western engine been damaged by the collision, and had suit been brought against the appellant to recover such damage by the other company, it could not well be insisted that it was not guilty of a breach of duty in causing such collision. A different injury was inflicted in the case at bar, but the breach of duty was not different. So far as the question of proximate cause is concerned, the averment that the negligence of the defendant caused the death of the decedent is, as a matter of pleading, sufficient. Baltimore v. Peterson, 156 Ind. 372, 59 N. E. 1044. The facts stated also show that the negligence charged was the proximate cause of the injury. Cleveland R. Co. v. Gray, supra. The complaint was not, therefore, subject to the objections made to it.

The answers to the interrogatories by the jury, in so far as they are material, are substantially as follows: The locomotive under which decedent was killed was standing on the track used and maintained jointly by appellant and the Indiana, Decatur & Western Company. Appellant had the right at the time of the accident to use the track. When decedent went under the locomotive to clean out the ash pan, he did not put out any warning or danger signal, or station a watchman near said locomotive to notify appellant's servants, while using said track, of his presence under the locomotive. There was no evidence that he took any precaution whatever to warn or notify the servants in charge of appellant's train that he was under the locomotive, cleaning out its ash pan. There was no evidence that appellant's servants knew that decedent was under the engine at the time he was killed. The servants of appellant at the time of the accident could not see him without looking under the engine. The appellant's servants at the time of the accident could not see him under his locomotive. The decedent, on the Saturday prior to the accident (the accident occurred on Monday), was instructed by the engineer of the Indiana, Decatur & Western Company engine not to go under it while standing on this track. He was not subject to the orders or under the control of the engineer. He did not know that appellant would back its train in on the Y track, and did not know that it had done so. He did not fail to exercise ordinary care in going under the engine as he did, and exercised such care under the circumstances as a person of ordinary prudence would. The finding that appellant's employés did not see decedent before he was killed is not decisive in its favor upon the question of its negligence. Negligence is not determined by the knowledge or lack of knowledge of the wrongdoer as to the details of the injury likely to be caused by his act. Under the complaint, the general verdict finds that appellant was negligent in striking the cars and engine of the Indiana, Decatur & Western Company as it did. It is not charged to have been negligent after decedent's peril was or should have been known, nor is willful injury charged.

A motion for judgment on the answers to the interrogatories notwithstanding the general verdict is not well taken unless the antagonism between them and the general verdict is so great that it could not have been removed by any evidence that might have been admitted under the issues. Indiana Co. v. Neusbaum, 21 Ind. App. 361, 52 N. E. 471. There is nothing shown as to the rules and customs of the companies with regard to the use of the Y track, and nothing to show that decedent had reason to know or expect that appellant would strike or move his engine, while the absence of evidence that any precaution was taken is not equivalent to a finding that no precaution was taken; the burden of establishing contributory negligence being upon the defendant. The quality of his acts and omissions must be determined by reference to the following legal propositions: He was not negligent in entering upon the common track in the course of his employment. Pittsburgh v. Martin, supra. The rules...