Cincinnati, Hamilton And Dayton Railway Company v. McCollum
| Decision Date | 21 February 1911 |
| Docket Number | 7,136 |
| Citation | 93 N.E. 1033,47 Ind.App. 184 |
| Parties | CINCINNATI, HAMILTON AND DAYTON RAILWAY COMPANY v. MCCOLLUM, GUARDIAN |
| Court | Indiana Appellate Court |
From Marion Circuit Court (15,332); Henry Clay Allen, Judge.
Action by Joseph M. McCollum, as guardian of Joseph W. Roebuck, a person of unsound mind, against the Cincinnati, Hamilton and Dayton Railway Company and others. From a judgment on a verdict for plaintiff for $ 4,500, defendant Cincinnati Hamilton and Dayton Railway Company appeals.
Reversed.
John B Elam, J. W. Fesler and Harvey J. Elam, for appellant.
J Burdette Little, for appellee.
Joseph M. McCollum, as guardian of Joseph W. Roebuck, a person of unsound mind, filed his amended complaint in the court below against appellant, the Cincinnati, Indianapolis and Western Railway Company and the Chicago, Indianapolis and Louisville Railway Company, to recover damages for personal injuries alleged to have been received by said Roebuck while in the employ of defendants as freight brakeman, by being struck on the head by an arm which fell from a defective switch target. After this appeal was taken Roebuck died, and Joseph M. McCollum, administrator of the estate of Roebuck, was substituted as appellee herein.
The negligence charged in the first paragraph is, substantially, that on September 26, 1904, and long prior thereto, defendants and each of them had negligently failed to inspect and keep in repair said switch signal; that by reason of said negligence it had become unsafe and insecure, in that the bolts and rivets of said switch signal had rusted away and fallen out, leaving it defective; that it was Roebuck's duty to operate said switch signal; that in the exercise of due care he did throw, turn and operate said signal; that because of the unsafe, unsound and insecure condition of said switch signal it fell upon Roebuck's head and injured him; that he had no knowledge of said unsafe condition.
The second and third paragraphs do not differ materially from the first. The second charges a violation of a rule requiring inspection, and the third proceeds upon the theory of a delegated supervision of such switch target.
The cause was afterwards dismissed as to the Chicago, Indianapolis and Louisville Railway Company.
Upon general issue formed, a trial was had by jury and a general verdict returned in favor of appellee's ward and against appellant. With the general verdict the jury returned answers to interrogatories. At the close of plaintiff's evidence the Cincinnati, Indianapolis and Western Railway Company successfully moved that the court grant a peremptory instruction in its favor. Appellant also moved for a peremptory instruction, which motion was overruled. Said motion was again renewed at the close of all the evidence, with the same result. Over appellant's motions for judgment on the answers to interrogatories, and for a new trial, judgment was rendered on the verdict.
The errors assigned and relied upon for reversal are, the overruling of appellant's motions (1) for a peremptory instruction, (2) for judgment on the answers to interrogatories, and (3) for a new trial.
The first alleged error is waived by failure to discuss.
The jury in the answers to interrogatories found that Roebuck was injured on September 26, 1904, at Glenwood, Indiana; that while he was operating a switch the switch target, weighing about fifteen pounds, fell and hit him on the head; that the target was fastened on with two rivets just before it fell that the target had been in substantially the same condition for over six months; that the target would "flop around when the switch was turned, and make a noise as it flopped;" that when operating the switch the head of a man six feet high would be three feet from the lower edge of the target; that another brakeman (Johnson) observed that the target was loose; that a brakeman operating the switch in an ordinary way would not observe that the target was loose; that Roebuck had not operated the switch three or four times before his injury on the day he was hurt; that he had operated it on previous occasions; that he was a freight brakeman on local freight, and had been so employed for several months; that his regular run was through Glenwood, Indiana, and that...
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