Chicago & E.R. Co. v. Lain

• Decision Date: 18 December 1906
• Docket Number: No. 5,033.,5,033.
• Citation: 79 N.E. 547
• Parties: CHICAGO & E. R. CO. v. LAIN.
• Court: Indiana Appellate Court

79 N.E. 547

CHICAGO & E. R. CO.

v.LAIN.

No. 5,033.¹

Appellate Court of Indiana.

Dec. 18, 1906.

On rehearing. Reversed.

For former opinion, see 72 N. E. 539.

ROBINSON, J.

Action by appellee for damages for personal injury. The third and fifth of the five paragraphs of complaint were withdrawn, and a demurrer to each of the other paragraphs for want of sufficient facts was overruled. Of these rulings complaint is first made.

The first paragraph of complaint avers that on November 24, 1900, appellee was an employé of appellant and engaged to do the work of a day laborer as one of the crew of appellant's yard and bridge men; that on that day while so engaged in appellant's service, and while in the exercise of due care and diligence, he received personal injuries which were occasioned by the negligence of one Harvey Eggleston, a foreman of appellant, who had employed appellee and to whose orders and directions he was bound to conform and did conform, that he received the injuries while performing the act and duty for appellantthat he was directed by the foreman to perform, and by the negligent acts and at the place and in the manner following: “At the town of Huntington, Huntington county, Indiana, said defendant, on the day aforesaid, had a switchyard connected with and forming part of its railroad, to and into which switchyard, there extended a number of switch tracks, from the defendant's main railroad tracks, the said switch tracks then being in use, among other purposes and places, for loading and unloading bridge timber, lumber, ties, and other materials, and the plaintiff was then directed by defendant's said foreman to go to the end of one of the freight cars used in hauling bridge timbers, standing on one of the said switch tracks and push it to another place on the track on which it was standing, and in an opposite direction from the defendant's main tracks, and while so engaged in pushing said car, and in a position where he could not, and did not see what was occurring behind him, and where he could not and did not on account of the noise made by the car he was pushing, and other noise and confusion in said yards, hear the approach of a detached car moving toward his back, said foreman who then and there had charge and supervision of said yards, switch tracks, and cars at that point, and authority to direct other employés of the defendant as to the movement of the cars on said switch track, negligently and carelessly, and without any warning to the plaintiff, and without the placing or sending out any flag or signal, and without giving any signals to warn the persons in charge of the switching engine to not come onto the track where the plaintiff was at his work, or to slacken the speed and move slowly and cautiously on said track, and without warning them that the plaintiff was at the place where he had been directed to go, directed and permitted the locomotive engine, belonging to the defendant and operated by the agents and servants of the defendant, to come onto the said switch track, at a careless rate of speed, with a car attached, and allowed the men in charge thereof, to carelessly detach said car from said engine, and, without any notice or warning to the plaintiff, to force said detached car to run with rapidity and force onto said switch track, and against and upon the plaintiff, striking him in the back,” producing injuries which are described.

In this paragraph it was manifestly the purpose of the pleader to state a cause of action under the second clause of the first section of the employers' liability act. That provision is: “That every railroad or other corporation, except municipal, operating in this state, shall be liable for damages for personal injury suffered by any employé while in its service, the employé so injured being in the exercise of due care and diligence, in the following cases: *** Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employé at the time of the injury was bound to conform, and did conform.” Burns' Ann. St. 1901, § 7083. It is true, the pleading avers that Eggleston, the foreman, had charge of the switchyards, switch tracks, and cars at that point and that through his alleged negligence the injuries occurred, yet, from the whole paragraph, it is manifest that the pleading proceeds, not under the fourth clause of the statute, but under the second clause. After averring the special order by the foreman to appellee and how appellee conformed to that order, the pleading sets forth the alleged negligence of the foreman and refers to him as...