Chicago & E.R. Co. v. Mitchell

• Decision Date: 23 November 1915
• Docket Number: No. 22831.,22831.
• Citation: 110 N.E. 215,184 Ind. 383
• Court: Indiana Supreme Court
• Parties: CHICAGO & E. R. CO. v. MITCHELL.

184 Ind. 383

110 N.E. 215

CHICAGO & E. R. CO.

v.MITCHELL.

No. 22831.

Supreme Court of Indiana.

Nov. 23, 1915.

Appeal from Superior Court, Allen County; Carl Yapple, Judge.

Action by Robert C. Mitchell, administrator, against Chicago & Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914; Acts 1901, p. 590. Affirmed.

W. O. Johnson and W. M. Johnson, both of Chicago, Ill., C. K. Lucas, of Huntington, and Walter Olds, of Ft. Wayne, for appellant. Fred H. Bowers and Milo N. Feightner, both of Huntington, for appellee.

COX, J.

[1] This appeal is from a judgment against appellant for negligently causing the death of appellee's decedent, James C. Hill, while in appellant's employ. The errors assigned and relied on for reversal are the action of the court (1) in overruling appellant's demurrer to appellee's complaint, (2) in overruling appellant's motion to direct a verdict for it by peremptory instructions, and (3) in overruling appellant's motion for a new trial. The only objection to the complaint raised in appellant's propositions or points in support of the first alleged error is the claim that, while the complaint is drawn to sustain a theory of negligence, the facts averred show willful acts on the part of appellant's employés alleged to have caused the death of Hill. Appellant's objection to the complaint is without merit. It alleged, in substance, material to this question, that while Hill, a car repairer in appellant's employ, was under and between certain of appellant's cars on one of its side tracks, in obedience to orders and the performance of his duty to repair the same, a switch engine of appellant's in the charge of its foreman or conductor, and in the charge of its engineer and fireman was run upon the same track and approached the cars under which Hill was working; that the switch foreman and engineer knew that Hill was under the cars at work, but that, unmindful of their duty towards him, they carelessly and negligently ran the engine with great force against the cars under which he was working, and carelessly and negligently failed and omitted to give him any warning of the approach of the engine or of any intention to move the cars under which Hill was working; that, by reason of the engine striking the cars under which he was working, they were moved along the track, and he was run over and crushed to death by them.

[2] Refusal of the trial court to direct a verdict by peremptory instruction cannot be made the basis for an independent assignment of error in this court. Such action must be presented to the trial court as cause for a new trial, and the court's action in denying the new trial assigned for error, to be available. Bane v. Keefer (1899) 152 Ind. 544, 53 N. E. 834;United States, etc., Co. v. Batt (1912) 49 Ind. App. 277, 97 N. E. 195;Deeter v. Burk (App. 1914) 107 N. E. 304.

[3] It was assigned as cause for a new trial that the court erred in admitting the testimony of certain witnesses for appellee as to seeing a car repairer's warning flag sticking upright near the track on which decedent was killed subsequent to the time when the injuries resulting in his death were received. Appellant's defense to the action was made on the theory that the switch crew had neither actual nor constructive knowledge that Hill was engaged in repairing the cars which they were about to move by running cars against them which were being pushed by a locomotive engine, and that his injuries, causing death in very few minutes, were due entirely to his own contributory negligence in failing, while doing the work on the cars, to display a warning flag as required by a rule of the company. This rule was given in evidence as provide:

“That a combined blue and red flag on metal standard by day and combined blue and red light by night, displayed at one end or at both ends of an engine, car or train, indicates that workmen are under or about it. Workmen are required to display such blue and red signals at either or both ends of an engine, car or train before proceeding with their work and the same workmen alone are authorized to remove them.”

Running to the north from appellants main track in the immediate vicinity of Huntington, appellant maintained a switch track to which subsiduary switch tracks were connected, and ran parallel with it past a mill for crushing stone. These tracks were used, among other things, for taking crushed stone from the mill. The track nearest the mill and just east of it was denominated track 1, the next 2, and the next 3, while the one farthest east and which was the main switch track was known as track 4. Bins for crushed stone from which it was loaded into cars extended over the tracks from the mill. The tracks were only accessible to a train from appellant's main road at the south end. Still east of these tracks there was the track of an interurban railroad. The cars on which Hill was doing repair work were on track 3 near the stone mill. He had then been repairing cars on these tracks for about a week before the day he was killed, on Saturday, July 22, 1911. There was evidence that during that time on several days the car repairers warning flag had been displayed south of the stone mill in different places as the workman changed his place of work; one of these being between tracks 3 and 4. There was also evidence that the switch crew was on or about these tracks every day during that time, and that on the day on which Hill was killed, after 3 o'clock in the afternoon, they had, earlier in the day, run in on track 4 and passed the cars on track 3. Members of the switch crew testified that, when the cars were pushed in against the ones on which Hill was working, they saw no car repairer's flag up at the end of the cars on which Hill was working, and some testified that there was none. Two of them testified that after the accident a short time a car repairer's flag was found by one of them east of track 4 near the scene of the accident lying on a pile of timber. The testimony of which complaint is now made, given by two witnesses for plaintiff, was to the effect that early on Monday morning a car repairer's flag was displayed some 18 to 28 rods south of the scene of the accident between tracks 3 and 4 between the cars under which Hill was killed and the switch connection with the main track. The objection made at the time of the introduction of this testimony was that it related to conditions at a time subsequent to the accident. The rule is well settled that, when the existence of an object, condition, quality, or tendency at a given time is in issue, both the prior and the subsequent existence of it is, in human experience, some evidence of its existence at the time in question. The degree of...