Chicago & Western Indiana Railroad Company v. Marshall
| Decision Date | 02 November 1905 |
| Docket Number | 5,441 |
| Citation | 75 N.E. 973,38 Ind.App. 217 |
| Court | Indiana Appellate Court |
| Parties | CHICAGO & WESTERN INDIANA RAILROAD COMPANY ET AL. v. MARSHALL |
Rehearing denied June 7, 1906.
From Huntington Circuit Court; James C. Branyan, Judge.
Action by Samuel R. Marshall against the Chicago & Western Indiana Railroad Company and others. From a judgment on a verdict for plaintiff for $ 2,700, defendants appeal.
Reversed.
W. O Johnson, E. C. Field, H. R. Kurrie, J. B. Kenner, C. K. Lucas and Sumner Kenner, for appellants.
R. A Kaufman and C. W. Watkins, for appellee.
The appellee brought his action against the Chicago & Erie Railroad Company and the appellants, the Chicago & Western Indiana Railroad Company and the Chicago, Indianapolis & Louisville Railway Company, to recover damages for personal injury suffered by the appellee while in the employ, as rear brakeman on a freight-train, of the first named company, which we shall designate as the Erie Company. The judgment being in favor of the Erie Company, the appeal is brought by the other two companies, which we shall designate as the Western Company and the Monon Company.
The complaint at first consisted of one paragraph, in which it was in substance shown, after preliminary averments concerning the corporate character and the business of each of the defendants, that August 16, 1902, the Western Company was the owner of a line of railroad from Hammond, Indiana, to Chicago, Illinois, with side-tracks and switches, and was operating and controlling a double-track line of railroad between those places; that each of the other companies was running its cars and locomotives over these tracks under a contract of lease, but subject to the orders, directions and rules of the Western Company, and each of the other companies received all its orders and directions for the running of its trains from the Western Company, and was so running its trains of cars and locomotives on the morning of the day above mentioned; that the appellee was in the employ of the Erie Company as brakeman on a freight-train, and it was his duty to obey the orders and signals of the conductor and engineer of said train, who were also in the employ of the Erie Company, which was running a train of cars, on which appellee was engaged as rear brakeman, from Chicago, Illinois, to Huntington, Indiana, over the lines of the Western Company; that, under the orders of the Western Company, they had advanced and were at or near State Line, and had arrived at the target station, and had received the target signal to enter the semaphore, and had pulled the train upon the target switch, and were standing within the distance semaphore awaiting the orders of the Western Company; that, while they were thus standing, the Monon Company's passenger-train, which was being run as a special train over the tracks of the Western Company, from Chicago to Indianapolis, on the same line of tracks over which the Erie Company was running its train, and over and on the track on which the Erie Company's train was so standing, and just as the last-mentioned train had started to leave the distance semaphore, approached the signal station with its train, at a rapid rate of speed, and ran into the rear end of the Erie Company's train, and over the appellee while he was in its caboose; that the appellee was buried under the wreckage, and crushed, bruised, mangled and permanently disabled, his injuries being described; that when he was struck by the locomotive engine of the Monon Company, he had just entered the caboose of the train on which he was so employed, which had just started to leave the track in the distance semaphore, and he had no knowledge that any train was being run on said tracks; that the train which ran into and over him was an extra train, and was not on any regular time-card, and had no regular time limit known to the appellee, and he had no notice or knowledge of the running of said train, or that another train or extra passenger-train was being run on said tracks; that he received no orders or directions from any one with reference to any extra train; that the conductor in charge of the Erie Company's train had no notice or knowledge or orders with reference to the running of this extra train, at the time he reached the signal station on which the appellee was struck, and only received such notice when his train was starting to leave that point, and no notice was ever given the appellee. There were further averments relating to the damages sustained by the appellee. It was alleged that the Western Company "carelessly and negligently omitted to give the plaintiff any orders as to the running of said extra passenger-train;" that the Monon Company "carelessly and negligently ran said train at a high rate of speed when approaching said signal station, and carelessly and negligently ran its said train over and against this plaintiff, without having any orders or directions or signal to cross over the tracks at the signal-station, and without having any signal giving that company the right to run on said semaphore, or distance switch, but carelessly and negligently ran its said locomotive and cars against the plaintiff and against the car in which this plaintiff was at that time, without having received any signal so to run its said cars and locomotive, and with the signal at said station turned against the running of its said train;" that the Erie Company "so negligently ran its train of cars, and permitted the same to be and remain on said tracks at the time when said passenger-train was approaching, and carelessly and negligently managed the running of its said train as to permit it to remain on said tracks, in front of said approaching train, after the engineer and conductor in charge of said train had been notified of the approach of said passenger-train, for the period of about two minutes, without in any manner notifying this plaintiff of the approach of said train; that by reason of such negligence on the part of the defendants herein, and the carelessness in the running of said trains, and the neglect to execute and deliver the proper orders for the running of said trains, the plaintiff herein received the injuries stated," etc.
The appellants, appearing specially, separately and severally, "for the purpose of contesting the sufficiency of the summons and service and return thereon only," filed a verified motion to quash the summons and return thereof, alleging that the action was brought against their railroad corporations; that these defendants had no connection with each other, except such as one company has with another in usual traffic and business connections; that the action was not on contract, but was in tort; that the appellants or neither of them ran through Huntington county, and had no office or agents in that county; that the only summons or service upon the Monon Company was a return of service on an agent of that company at Hammond, Indiana; that the only service of summons on the Western Company was service on a railroad telegraph operator...
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