Chicago & E.R. Co. v. Dinius

• Decision Date: 20 March 1908
• Docket Number: No. 21,073.,21,073.
• Citation: 170 Ind. 222,84 N.E. 9
• Court: Indiana Supreme Court
• Parties: CHICAGO & E. R. CO. et al. v. DINIUS.

170 Ind. 222

84 N.E. 9

CHICAGO & E. R. CO. et al.

v.DINIUS.

No. 21,073.

Supreme Court of Indiana.

March 20, 1908.

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Action by Clark W. Dinius against the Chicago & Erie Railroad Company and another. From a judgment overruling defendants' demurrers to the complaint, defendants appealed to the Appellate Court, from which the cause was transferred to the Supreme Court. Reversed.

W. A. Johnson, Geo. C. Gale, Kenner, Lucas & Kenner, W. G. Todd, and Ulric Z. Wiley, for appellants. Spencer & Branyan, for appellee.

JORDAN, J.

This action was commenced in the Huntington circuit court by appellee to recover for personal injuries sustained by him on account of the alleged negligence of the defendants, appellees herein, the Chicago & Erie Railroad Company and the Toledo, St. Louis & Western Railroad Company. The venue of the cause was changed to the Wabash circuit court. Each of the defendants separately demurred to the complaint on the ground of insufficiency of facts therein alleged. These demurrers were overruled, and proper exceptions reserved by the respective defendants. The defendants answered separately by the general denial. The cause upon the issues was tried by jury, and a general verdict returned in favor of the plaintiff, assessing his damages at $7,250. Along with the general verdict, the jury returned answers to a series of interrogatories. The defendants separately moved for judgment in their favor on the interrogatories, and also filed separate motions for a new trial and in arrest of judgment, all of which motions were denied and exceptions reserved. The court then rendered judgment on the verdict. Separate assignments of error are predicated by appellants on each of the adverse rulings of the lower court.

The first question for our consideration is the sufficiency of the complaint. It is alleged therein: “That on the 4th day of March, 1904, and for a long time prior thereto, and ever since, the defendant first above named (Chicago & Erie Company) has owned and operated a railroad for hire, with passengerand freight cars, drawn by locomotives propelled by steam, from Chicago, Ill., to Marion, Ohio, which line of railroad passes through the state of Indiana, and through Van Wert county in the state of Ohio, and the county of Huntington in the state of Indiana. That said Toledo, St. Louis & Western Railroad Company is a corporation duly organized and operating under the laws of the states of Ohio, Indiana, Illinois, and Missouri. That on the 4th day of March, 1904, and for a long time prior thereto, and ever since, it has owned and operated a railroad for hire with passenger and freight cars drawn by locomotives propelled by steam, from Toledo, Ohio, to St. Louis, Mo., which line of railroad passes through the county of Huntington in the state of Indiana, and through Van Wert county in the state of Ohio. That said railroads of said railroad companies cross each other at Ohio City in Van Wert county, Ohio, and there is a switching yard in the eastern part of said town of Ohio City, in connection with and as a part of the Chicago & Erie Railroad Company's track, and a Y extending therefrom to, and uniting with, the track of the Toledo, St. Louis & Western Railroad Company's track. That such Y is built upon a roadbed, which roadbed is upon land and territory owned by the Chicago & Erie Railroad Company, and such Y and other portions of such track hereinafter named are constructed with, and consist of, cross-ties, rails, and frogs placed upon the roadbed, which roadbed was constructed by the Toledo, St. Louis & Western Railroad Company, and such rails, frogs, and ties were placed thereon and are maintained, together with such roadbed, by the Toledo, St. Louis & Western Railroad Company. That the Toledo, St. Louis & Western Railroad Company, prior to the 4th day of March, 1904, and on said date, and continuously ever since, has jointly occupied, maintained, and used said Y and said track with the Chicago & Erie Railroad Company by virtue of a lease held by said Toledo, St. Louis & Western Railroad Company from said Chicago & Erie Company. That prior to March 4, 1904, and on said date, and ever since, each of said defendant railroad companies has had traffic arrangements by virtue of a contract existing between them. That they were at that time and prior thereto each switching and operating over and along their switches in said yard at Ohio City, and over and along said Y hereinbefore mentioned, and side and delivery tracks, and said traffic arrangement aforesaid was in full force and effect and under actual operation on the 4th day of March, 1904. That this plaintiff on the 4th day of March, 1904, was regularly employed by the defendant, the Chicago & Erie Railroad Company, as brakeman on one of the freight trains, and was running from Marion, Ohio, to Huntington, Ind., on said road. That at the town of Ohio City in Van Wert county in the state of Ohio, while this plaintiff was so employed and in the line of his duty, and while working along with one of the crews consisting of a locomotive engineer, freight train conductor, and other brakemen in the employ of the Chicago & Erie Railroad Company, while this plaintiff was attempting to make a coupling between two freight cars on the Chicago & Erie delivery and side track in the eastern part of the switchyard-said delivery and side track leads onto, and is a part of, the Y hereinbefore described-and while the car on the east side, namely, Erie car No. 72,470, was standing still, and the car on the west side, namely, Chicago & Eastern Illinois car No. 60,407, was backing up towards the east, the latter car being propelled by a locomotive, which locomotive was then and there operated by the Chicago & Erie Railroad Company, a part of the chain on the lever which operates the coupling of the eastern car, namely, the car herein first above mentioned, was absent, such coupling could not be operated with the lever, and it became an emergent necessity in order to make such coupling to operate same on the car backing up, and the lever on the car backing up was on the opposite side of the car from where plaintiff was standing, and in order to operate the coupling on the car backing up, plaintiff was compelled to go to the opposite side of the track from where he was standing. For such purpose, he attempted to cross the track, and in so doing he stepped upon the end of one of the cross-ties of the track. His foot slipped off of the tie and onto a low place between the cross-ties, and he fell to the ground within the rails and into one of said low places between the cross-ties. He attempted to extricate himself immediately, and to move and roll his body forward, and off the track, if possible; he not having time to rise, as the moving car backing up was so close to him. On account of being in said hole and low place between the cross-ties, he was unable to remove his person-that is, to roll away and get off of the track-and was caught by the moving car then backing up, and his left hip was dislocated, and the foot of the right leg was cut off in the region of the ankle by the wheels of one of the trucks of the moving car passing over his ankle. That the track upon which this alleged injury occurred, at the spot where plaintiff fell, and for 10 feet on each side thereof, was not properly ballasted and filled with gravel, cinders, or other substance so that six inches of cross-ties below the bottom of the rails were exposed, and that there were large, deep, and wide open spaces between the cross-ties, and that such track had been in such condition for a long time, to wit, three months, and that the defendants and each of them had knowingly, negligently, and carelessly suffered and permitted said ties and track at the point where said injury occurred on said Y and delivery side track, as herein described, to remain in said condition for a period of three months, as aforesaid, prior to the happening of said injury.”

The complaint then alleges: That there was a traffic arrangement, or contract, between the two companies, under which it became the duty of each severally, and both jointly, to keep said roadbed ballasted between said cross-ties at such point of accident in a proper and safe condition for its employés to work over and upon. It is further charged that at the place where plaintiff fell, as aforesaid, and was injured, there was much switching done by both of said defendants, and that on account of much traffic and frequent hitching and unhitching, changing and switching cars, it required the employés of each of the defendants to traverse said place, where plaintiff fell, daily, and often many times every day. That on account of the lack of filling and ballasting of said roadbed, etc., at the point where plaintiff fell and was injured, and for 10 feet along each side thereof, and the wide open, deep places between the cross-ties, as aforesaid, that such...