Chicago, M., St. P. & P. R. Co. v. Cox
| Decision Date | 03 May 1937 |
| Docket Number | 15351. |
| Citation | 7 N.E.2d 1008,103 Ind.App. 364 |
| Court | Indiana Appellate Court |
| Parties | CHICAGO, M., ST. P. & P. R. CO. v. COX. |
Bert Beasley, of Indianapolis, and Allen, Hastings & Allen, of Washington, Ind., for appellant.
Frank E. Gilkison, of Shoals, and Chas. G. Gardiner and Padgett & Rogers, all of Washington, Ind., for appellee.
This is an action by appellee against appellant to recover damages for injuries alleged to have been sustained by appellee in the year 1929, while engaged in the repair of a locomotive engine at appellant's roundhouse in Bedford, Ind Appellee alleged that the injuries were incurred in the course of his employment, due to the alleged negligence on the part of appellant in furnishing appellee with defective working tools and in furnishing a defective base upon which the appliances were required to be used.
Appellee filed his complaint in three paragraphs drawn under the Employers' Liability Act (Acts 1911, c. 88, p. 145 section 40-1101 et seq., Burns' 1933, section 10100.1 Baldwin's Ind.St.1934).
At the beginning of the trial appellee was permitted to amend each paragraph of complaint over the written objections of appellant by inserting an allegation to the effect that the locomotive engine upon which he was assisting in the repair was engaged in train service. The amended complaint alleged in substance that appellant owns and operates a certain line of railway extending within the state of Indiana; that it employs five persons or more; that it maintains and operates a roundhouse in the city of Bedford, Ind., for the maintenance and minor repairs of its locomotive engines; that on the day in question appellee was engaged as a workman in the employ of appellant in the repair of its locomotive engines at said roundhouse, under the direction and supervision of the foreman and inspector in charge; that appellee was ordered to, and did, assist in the repair of one of appellant's locomotive engines which was engaged in train service; that said repairs were made on the engine while it was stationed in the roundhouse; and that in the act of repairing said engine, in the use of a defective jack and a defective base, appellee was injured. We deem it unnecessary to set out in detail the allegations disclosing the injuries and damages complained of.
A motion to make each paragraph of amended complaint more specific was overruled. Appellant thereafter unsuccessfully demurred to each paragraph of amended complaint for want of facts and thereupon filed its answer in four paragraphs, in substance: General denial; the cause of action was not commenced, pleaded, or filed within two years after the cause arose; the cause of action did not accrue within two years before the commencement of this action; the original complaint was amended after the expiration of two years from the time the cause of action arose, and the amendment was a statement of a new and distinct cause of action. To the affirmative answers appellee replied in general denial.
A trial by the court and jury resulted in a verdict and judgment for appellee awarding him damages. From this judgment appellant appealed and assigned as error: (1) The overruling of appellant's demurrer to each paragraph of amended complaint; (2) the granting of leave to refile the complaint as amended; (3) the overruling of appellant's motion to make each paragraph of amended complaint more specific; and (4) the overruling of appellant's motion for a new trial. The causes set out in the motion for a new trial are substantially: The verdict is not sustained by sufficient evidence; the verdict is contrary to law; the court erred in the giving and refusal of certain instructions; and the court erred in the admission of certain evidence.
The principal question presented in this appeal is, Was appellee engaged in train service within the meaning of section 2 of the Indiana Workmen's Compensation Act (section 40-1202, Burns' 1933, section 16378, Baldwin's Ind.St.1934) at the time of his injury, so as to exempt him from the provisions of the act? Said section provides in part: "This act shall not apply to railroad employees engaged in train service." The controlling facts in the case upon this question are not in conflict. The evidence being undisputed, its effect becomes a matter of law for the court. Smetanka, etc., v. Inland Steel Co. (1927) 86 Ind.App. 578, 158 N.E. 909.
The evidence discloses that appellee was injured while assisting in making light repairs on locomotive engine No. 8262 in appellant's roundhouse located at Bedford, Ind.; that the engine in question, pulling a freight train, entered the said city of Bedford on appellant's tracks about 4:25 a. m. on June 18, 1929; that upon arriving at said city of Bedford the engine was detached and sent to the appellant's roundhouse for minor repairs, consisting of the replacement of a brass bearing. Whereupon the train of freight cars was broken up, and the cars were distributed to various points. The engine remained in the roundhouse from two to three hours. Not all of the fire was removed from the fire box, and steam was left in the engine. During the time the engine was in the roundhouse, appellee, while assisting in its repair, was injured. Appellee's general employment was that of a machinist's helper in the roundhouse. A short time prior to appellee's injury, the engine which was being repaired was called to assist in moving a train of cars from the city of Bedford, Ind., to Odon, Ind. After the injury occurred and the repairs were completed, the engine was taken from the roundhouse and did, on the same day, assist in the movement of a train from said city of Bedford to Odon, Ind.
It must be conceded in this case, before a recovery can be had that appellee...
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