Chicago & E.R. Co. v. Dinius, 21,665.

• Docket Nº: No. 21,665.
• Citation: 103 N.E. 652, 180 Ind. 596
• Case Date: December 17, 1913
• Court: Supreme Court of Indiana

180 Ind. 596
103 N.E. 652

CHICAGO & E. R. CO. et al.
v.
DINIUS.

No. 21,665.

Supreme Court of Indiana.

Dec. 17, 1913.

Appeal from Circuit Court, Wabash County; Chas. A. Cole, Special Judge.

Action by Clark W. Dinius against the Chicago & Erie Railroad Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

[103 N.E. 654]

The part of instruction I, given for plaintiff, which was objected to, concluded: “If you find, then, that either of said defendants, or both of them, were so under such legal obligations, and said defendants or either of them were guilty of negligence, and plaintiff was himself free from fault, and that the other material averments of the complaint have been proven, then it will be your duty to find a verdict in favor of the plaintiff against such defendant or defendants.”

Charles A. Schmettau, of Toledo, Ohio, Gunther & Clark, of Frankfort, Clarence Brown, of Toledo, Ohio, and Warren G. Sayre, of Wabash, for appellants. W. A. Branyan, of Huntington, F. O. Switzer, of Wabash, and U. S. Lesh, of Huntington, for appellee.

COX, J.

Appellee recovered a judgment in this action against both appellants for injuries sustained by him while performing the duties of brakeman in the service of appellant Chicago & Erie Railroad Company, on a track jointly used by it and appellant Toledo, St. Louis & Western Railroad Company. In the trial below, the record shows, these railroads were, for the sake of brevity, designated respectively as the “Erie,” and the “Clover Leaf,” and will be so termed in the consideration of this appeal.

Appellants suffered a defeat in a former trial, and appeal to this court from a judgment therein rendered against them, and here the judgment was reversed with instructions to sustain the demurrers of appellants to the complaint. Chicago & Erie Railroad Co. v. Dinius (1908) 170 Ind. 222, 84 N. E. 9. When the cause was remanded, appellee filed an amended complaint in two paragraphs, and the judgment before us now for review is the result of a trial thereon.

Preliminary to many questions presented for consideration, the Clover Leaf Railroad Company urges a question of jurisdiction. The action was begun in Huntington county against the Erie Railroad Company alone. Both railroads ran into and had offices in that county. A change of venue was taken by appellee to Wabash county, a territory occupied by the Erie but not by the Clover Leaf. There the latter railroad was made a party, and summons was issued to an adjoining county, and served upon it there. It not appearing on the face of the complaint, the question of jurisdiction over the person of the Clover Leaf Railroad was raised by plea in abatement, to which the appellee addressed a demurrer which was sustained. This action of the court, it is contended, was error. A review of the question is foreclosed. The same question was involved in the former appeal presented by the record urged in the brief of the Clover Leaf Railroad Company.

[1] A second appeal brings up for review

[103 N.E. 655]

and decision nothing but the proceedings subsequent to the reversal. Thereafter all questions presented by the first record will be considered as finally determined by the judgment of this court. All such questions not expressly affirmed or reversed will, by implication, be deemed affirmed. Dodge v. Gaylord (1876) 53 Ind. 365;Stevens v. Templeton (1910) 174 Ind. 129, 91 N. E. 563;Ohio Valley Trust Co. v. Wernke (1912) 99 N. E. 734. This question, however, seems to have been decided against the contention now made by appellant in Chicago, etc., R. Co. v. Marshall (1906) 38 Ind. App. 217, 75 N. E. 973.

Demurrers were addressed to each paragraph of the amended complaint by each of the appellants which were overruled by the court. These rulings were the bases of separate assignments of error.

Omitting formal and preliminary averments, the first paragraph of the complaint alleges: “That said roads and lines of said railroad companies intersect and cross each other at Ohio City, in Van Wert county, in the state of Ohio, and that there is a switchyard in the east part of said town of Ohio City; that each of said railroad companies have in said switchyard a delivery track, which delivery tracks parallel the main line of the Chicago & Erie Railroad Company; that each of of said railroads has a crossover track running from their main lines to the delivery tracks; that in said switchyard there is also a wye uniting the lines of said railroad tracks and said delivery tracks; that there was a short space of track, used in common by both of defendant companies in said switchyard on the 4th day of March, 1904, and continuously prior thereto for three months or more, at the intersection of said wye and the delivery track of the Chicago & Erie Railroad Company and the delivery track of the Toledo, St. Louis & Western Railroad Company, over which space of track, as aforesaid, both of said companies must have and did move and bring cars to and from both of said delivery tracks to the main line of each railroad company's tracks and to said wye aforesaid; that said companies each carelessly and negligently neglected to ballast said space of track so used in common as aforesaid, and carelessly and negligently left the space between the ties in said portion of tracks open, on the 4th day of March, 1904, and three months immediately prior thereto; that each of said companies knowingly left such space of track so used in common as aforesaid in such condition, that the same was dangerous and unsafe for the switchmen of each of said companies to work over and along such portion of track; that it was in said portion of track so used in common that the plaintiff was hurt, and received the injury as in this paragraph of complaint elsewhere more fully alleged; that said switchyard on each side of said portion of track so used in common was properly ballasted and made safe for the employés of said companies to work over and along, so that there was nothing to warn or lead the employés of said company and this plaintiff to know or suspect that the space of track so used in common was left in the unballasted and dangerous condition aforesaid; that such wye and the delivery tracks and the space of track so used by said railroad companies in common are built upon roadbeds which are upon the lands and property owned by the Chicago & Erie Railroad Company, and are constructed with and consist of cross-ties, rails, and frogs upon the roadbed, which roadbed was constructed by the Toledo, St. Louis & Western Railroad Company, and such rails, frogs, and ties were placed and maintained, together with such roadbed, by the Toledo, St. Louis & Western Railroad Company, a map fully showing and describing the tracks, switchyards, delivery tracks, wye, and said place of road so used in common by said companies at the town of Ohio City is filed herewith and made a part of this paragraph of complaint, and marked Exhibit A; that said railroad companies have both for three months prior to the 4th day of March, 1904, and on said date and continuously ever since, jointly occupied, maintained, and used said space of track between said wye and said delivery tracks in common by virtue of a lease held by the Toledo, St. Louis & Western Railroad Company from the Chicago & Erie Railroad Company, and that during said time said railroad companies have had traffic arrangements by virtue of a written contract existing between them, and were at said date, to wit, on the 4th day of March, 1904, and for a long time prior thereto and since, each switching and operating cars over and along their switches in said Ohio City, and over and along said wye, and over such space of track hereinbefore described connecting said wye with said delivery tracks; that said traffic arrangements aforesaid were in full force and effect and under actual operation on the 4th day of March, 1904. Plaintiff further avers that on the 4th day of March, 1904, he was regularly employed in the capacity of a brakeman by the defendant the Chicago & Erie Railroad Company on one of its freight trains then being operated over its said line from Marion, in the state of Ohio, to Huntington, in the state of Indiana; that when said freight train arrived at the town of Ohio City, in the county of Van Wert in the state of Ohio, and while this plaintiff was so employed and was a member of the crew of said freight train, said freight train was run into said switchyard, and it became the duty of this plaintiff, as such employé of the said Chicago & Erie Railroad Company and a member of the crew on said train, to make a coupling between two freight cars on the delivery track of the Chicago & Erie Railroad being elsewhere described, which cars to be so coupled were car No.

[103 N.E. 656]

73470, which was then standing still on the Chicago & Erie delivery track, and a certain Chicago & Eastern Illinois car No. 60407, then situated west of said Erie car, and was being backed up by the employés and agents of the said Chicago & Erie Railroad Company eastward toward the said Erie Car No. 73470; that at said time said Chicago & Eastern Illinois car was being propelled by a locomotive, which locomotive was then and there operated by said Chicago & Erie Railroad Company; that at said time a part of the chain on the lever which operated the coupling on the car, being the first car hereinabove mentioned, was absent, and by reason thereof such coupling could not be made with the lever thereon, and it became an emergent necessity, in order to make such coupling, to operate the lever on the car backing up, being said latter-named car; that there was a lever on said last-described car and which was then backing up on the opposite side of such car from where plaintiff was situated, and which lever it was necessary for plaintiff to move in order to effect such coupling, and he was thereupon compelled to go to the opposite side of the track from...