Chicago & E.R. Co. v. Shenkel

• Decision Date: 06 February 1914
• Docket Number: No. 8092.,8092.
• Parties: CHICAGO & E. R. CO. v. SHENKEL.
• Court: Indiana Appellate Court

57 Ind.App. 175

104 N.E. 50

CHICAGO & E. R. CO.

v.SHENKEL.

No. 8092.

Appellate Court of Indiana, Division No. 1.

Feb. 6, 1914.

Appeal from Circuit Court, Wabash County.

Action by Edward Shenkel against the Chicago & Erie Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.Walter M. Johnson, of Chicago, Ill., Ulric Z. Wiley, of Indianapolis, W. O. Johnson, of Chicago, Ill., Walter G. Todd, of Wabash, and Charles K. Lucas, of Huntington, for appellant. C. W. Watkins and Chas. A. Butler, both of Huntington, for appellee.

FELT, J.

Appellee recorded judgment against appellant for personal injuries. On appeal from this judgment the errors assigned and duly presented by the briefs call in question the action of the court in overruling the demurrer to the first paragraph of appellee's amended complaint, and also the fourth paragraph of amended complaint, overruling appellant's motion for judgment on the answers of the jury to the interrogatories, for a new trial, and in arrest of judgment.

[1] Omitting the formal averments and details about which there is no controversy, the gist of the first paragraph of amended complaint is that appellee was employed by appellant as a switchman, and at the time of his injury was working as such under the yard foreman in appellant's switchyards in Huntington, Ind.; that at that time, and prior thereto, it was the custom and practice of appellant to block the frogs in said yard; that appellee knew of said custom, and relied thereon; that on November 15, 1906, while working as aforesaid, he was ordered by Ed Maloney, the yard foreman, to close the knuckle on a car standing on track 9 in said yard, so that it could be shoved along the track without coupling; that on receipt of said order he immediately stepped to the end of the car to close said knuckle, which was the necessary and customary way of obeying such order; that while so doing he stepped into an unblocked frog, which appellant had negligently failed to block, and his foot was thereby caught and held until he was struck and injured by the approaching cars; that he did not know at the time he was injured, or at any time prior thereto, that there was no block in said frog, nor that it was in a defective and dangerous condition.

The fourth paragraph of amended complaint is substantially the same as the first, except it is alleged that appellant assigned a particular employé to do the work of blocking the frogs in said yard, and shortly before appellee's injury, without his knowledge thereof, negligently stopped the work of repairing and blocking said frogs, and did not notify appellee of its change of policy in regard to such repairs.

Appellant insists that each paragraph of complaint is insufficient because the facts averred show that the cause of appellee's injury was one of the ordinary risks incident to his employment, and therefore assumed by him; also that it affirmatively appears from the complaint that appellee was guilty of negligence which contributed to his alleged injury.

Each paragraph of complaint is sufficient to state a cause of action against appellant, and we do not deem it necessary to set the averments out in full or to enter into a detailed discussion of the reasons for this conclusion because of the similarity of the complaint to one held good by a recent decision of our Supreme Court. Grand Trunk Western Ry. Co. v. Poole, 175 Ind. 567, 93 N. E. 27.

The substance of the jury's answers to the interrogatories is as follows: That appellee was employed by appellant as switchman in Huntington yards for 11 months prior to his injury on November 15, 1906; that there were a large number of tracks in said yards used for storing, switching, and repairing cars; that in moving southward or eastward on the lead to the middle yard there was a switch connecting with the repair track running to the east, and after passing this there was another switch connecting with track No. 9 which ran to the south; that there were frogs connected with said switches; that on the morning of November 15, 1906, appellee was working with the switching crew in said yards; that a car was run in on track No. 9 which stopped before going far enough to clear the other tracks; that the foreman of the switching crew desired to bump this car without coupling onto it, and to send it further along on track No. 9; that there was an engine with about 15 cars attached to it moving toward said car on track No. 9 at the rate of three or four miles per hour; that appellee was then standing in a clear space, and the foreman of the crew called or signaled him to arrange the coupling apparatus so that the cars would not couple; that there was a lever on the stationary car nearest where appellee was standing which connected with the coupler, and raised the coupling pin so that it would not couple to another car when “bumped”; that appellee could have operated this lever without going upon the track, and he would have been in a safe position while so doing; that appellee entered upon the track in front of the moving cars to arrange the coupler on the stationary car with his hands so that it would not couple; that rails, a switch point, and a frog were near where he entered on the tracks; that he could have seen the frog and its condition had he looked; that he fell in front of the moving train, and the accident occurred about 10 o'clock in the morning; that the frog near where the plaintiff was injured was not blocked during the year 1906; that during said year about one-half of the frogs in Huntington yards were blocked, and half were not blocked; that plaintiff did not know the general condition of the tracks and frogs in said yards during the year 1906 prior to his injury; that plaintiff at the time of his injury was in possession of the normal faculties of hearing and seeing.

It is contended by appellant that the foregoing answers of the jury are in irreconcilable conflict with the general verdict; that they show clearly that appellee was guilty of negligence which contributed to his injury, and show affirmatively that the cause of his injury was open and obvious, and was one of the ordinary risks incident to his employment, and was assumed by him.

[2] It is a familiar and oft-repeated rule that, in passing upon the question of the sufficiency of such answers to overcome the general verdict, the court will consider only the general verdict, the interrogatories and answers, and the pleadings.

[3] The general verdict finds every material, issuable fact in favor of the prevailing party. All reasonable presumptions are indulged in favor of the general verdict, and nothing is presumed in favor of the answers to the interrogatories; but they should be fairly and reasonably construed.

[4][5] If the apparent conflict between the facts found by the general verdict and the answers to the interrogatories may be explained and removed by any possible evidence admissible under the issues, the motion for judgment on the answers to the interrogatories should be overruled. If answers are contradictory, they nullify each other, and have no effect on the general verdict.

[6] If, however, when so considered, the answers show a failure to prove a material fact upon which the plaintiff's right of recovery depends, or establish a material fact or facts which, as a matter of law, defeat the plaintiff's recovery, then the answers are in irreconcilable conflict with the general verdict, and the motion should be sustained. Chicago, etc., Co. v. Hamerick, 50 Ind. App. 425-439, 96 N. E. 649;McCoy v. Kokomo, etc., Co., 158 Ind. 662, 64 N. E. 92;Wabash Co. v. McNown, 99 N. E. 126-130.

Appellant's contention here is similar to the objections urged to the complaint, that the answers conclusively show that the cause of appellee's injury was a risk assumed by him, and that he was guilty of negligence contributing to his injury.

[7][8] The complaint charges that it had been the practice and custom of the company to block the frogs in the switchyard where appellee was injured; that plaintiff knew of such custom, and relied thereon; that defendant knew of the dangerous and defective condition of the frog that caused the injury, or by the exercise of reasonable care could have known thereof, in time to have blocked it before plaintiff's injury, but negligently failed so to do; that plaintiff did not know that said frog was unblocked or dangerous prior to his injury; that his superior officer directed him “to close the knuckle,” and in order to do so it was “necessary and customary to step from the side of the end of said car to the center of the end thereof; that “said knuckle cannot be reachedor controlled in any other way”; that in obedience to his orders aforesaid plaintiff stepped between the rails to close said knuckle, and while so engaged in the line of his duty, without fault on his part, stepped into the “Y” of said unblocked frog, which caught and held his foot, and while trying to extricate his foot therefrom he was struck by said train of cars and injured.

The general verdict finds that appellant was negligent as charged in the complaint; that its negligence was the proximate cause of appellee's injury; that appellee did not assume the risk which resulted in his injury, and was not guilty of negligence contributory thereto.

It is contended by appellant that the answers showing appellee's opportunity of knowing the conditions of the yard and his familiarity with the tracks and the switches, and the answers showing that he could have seen the frog and its condition had he looked, are in irreconcilable conflict with the general verdict, and established the proposition that he assumed the risk which resulted in his injury. Assumption of risk which will defeat a liability for actionable negligence depends wholly upon the servant's knowledge, actual or constructive, of the existence...