Chicago & E.R. Co. v. Hamerick

• Court: Indiana Appellate Court
• Writing for the Court: FELT
• Citation: Chicago & E.R. Co. v. Hamerick, 50 Ind.App. 425, 96 N.E. 649 (Ind. App. 1911)
• Decision Date: 28 November 1911
• Docket Number: No. 6,980.,6,980.
• Parties: CHICAGO & E. R. CO. v. HAMERICK.

50 Ind.App. 425

96 N.E. 649

CHICAGO & E. R. CO.

v.HAMERICK.

No. 6,980.¹

Appellate Court of Indiana.

Nov. 28, 1911.

Appeal from Circuit Court, Wells County; Charles E. Sturgis, Judge.

Action by Davis P. Hamerick, administrator of William E. McCalley, deceased, against the Chicago & Erie Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.Ulric Z. Wiley, Arthur H. Jones, Eichhorn & Vaughn, and W. O. Johnson, for appellant. C. W. Watkins and E. O. King, for appellee.

FELT, C. J.

Davis P. Hamerick, as administrator of the estate of William E. McCalley, deceased, brought this action against the 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 upon the verdict, from which this appeal is prosecuted.

The errors relied upon 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, state of Indiana, to the city of Erie, in the state of Pennsylvania; that it owns and operates on said road a large number of locomotives, cars, trains, etc., and 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, Ind., going west, as engineer on engine No. 776, 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 Nos. 32 and 74, east bound, at Bippus, Ind., 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 No. 19 train order was handed on, changing the meeting order for No. 74 from Bippus to Servia, Ind., 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 this 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 onto the siding; that, before the 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 the defendant to give proper signals to employés managing and running trains for the 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 him by the 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 the 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 the 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, 20 and 13 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 its headlight burning so as to be visible to the employés 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 employer's 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.

[1] 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 upon. Chicago, I. & L. Ry. Co. v. Barnes, 164 Ind. 143-148, 73 N. E. 91.

[2] The specific objection urged against the complaint is that the allegations charging negligence are mere conclusions, and not the averments 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 employés,” 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 “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 watch-word 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 appellee's decedent in charge of appellant's engine No. 776 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 the 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 the appellant. Aided by the other averments of the complaint, the statements “that it was the duty and business” of the operator to give proper signals, and that it was “the duty and business” of the engineer to obey the signals so given, were averments of ultimate facts, and not mere conclusions of the pleader. The complaint shows a fully equipped telegraph office and signal station at Servia on appellant's road with an employé in charge whose business it was to operate...