Cincinnati, I., St. L.&C. Ry. Co. v. Long

• Decision Date: 21 October 1887
• Court: Indiana Supreme Court
• Parties: Cincinnati, I., St. L. & C. Ry. Co. v. Long, Adm'r.

112 Ind. 166

13 N.E. 659

Cincinnati, I., St. L. & C. Ry. Co.

v.Long, Adm'r.

Supreme Court of Indiana.

October 21, 1887.

Appeal from superior court, Marion county; Lewis C. Walker, Judge.

Elliott, J., dissenting.

Baker, Hord & Hendricks, for appellant.

The plaintiff's intestate was not upon the defendant's road. The plaintiff's intestate and the defendant's employes were both upon the tracks of the Union Railway Company, called there for switching purposes by their respective railroads. Their business was at no particular place, but wherever their duties might call them. The defendant not only had no control over the plaintiff's intestate, but had no knowledge that he was to be upon the track of the Union Railway Company on that day. The position occupied by the plaintiff's intestate, and that of the defendant's employes, was one of a dangerous character, and for their own protection an active lookout was required. The business in which the plaintiff's intestate was engaged was not only of a character that would not excuse the want of care, but was such as to require great care. It is the first duty of a section-man or switch-man to take care of himself. Railway Co. v. McGrath, 3 N. E. Rep. 439. See, also, Railwad Co. v. Whittington's Adm'r, 30 Grat. 805;Railway Co. v. Sweeney, 52 Ill. 325;Bradley v. Railroad Co., 62 N. Y. 99;Holland v. Railroad Co., 18 Fed. Rep. 243. It is well settled by the authorities that no want of care upon the part of the defendant will excuse want of care on the part of plaintiff's decedent. Railroad Co. v. Butler, 2 N. E. Rep. 138; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. Rep. 1125.

Deceased, at and before the time he was struck, was not upon the track upon which the box car that struck him approached. He was a railroad man, and known to be such to the employes operating appellant's train. The appellant's employes had no reason to believe that he did not know that appellant's train was approaching. The bell was being rung, and the train was approaching very slowly, and was in full view of Hampton for a considerable distance before it struck him. The appellant's employes had no reason to believe that he would either step into a position where he could be struck by the box car, or, if he was in a position where he would be struck by it, that he would remain there and be struck. We suppose it to be quite well settled by the authorities that it was not the duty of appellant's employes to anticipate that Hampton would step into a position where he would be struck, or that he would remain in a position where he would be struck, and that it was therefore not necessary for them to halloo to him, informing him that the train was approaching. 2 Ror. R. R. 1032; Railroad Co. v. Graham, 46 Ind. 239-245;Railroad Co. v. McClaren, 62 Ind. 566-572;Railway Co. v. Hunter, 33 Ind. 358, 359;Railroad Co. v. Miller, 25 Mich. 274;Bell v. Railroad Co., 72 Mo. 50, 4 Amer. & Eng. R. Cas. 580. Upon the subject of the duty of a lookout on the end of a train, we call the attention of the court to the case of Barley v. Railroad Co., 4 Biss. 430, on page 432.

H. N. Spaan and Albert Wishard, for appellee.

The appellant was clearly guilty of negligence in backing down on appellee's decedent while he was absorbed in his work, when the watchman on the rear of the train saw him in time to have given warning, or to have stopped the train. It is not sufficient that they complied with the city ordinance in the rate of speed, by ringing the bell, and by placing the watchman on the rear car. It was his duty, when he saw the deceased, to give him warning. Obeying the statute or ordinance is not always sufficient to exonerate a railroad company from liability for negligence. Railroad Co. v. Boggs, 101 Ind. 522;Bradley v. Railroad, 2 Cush. 539; 2 Ror. R. R. 1014; Thomp. Neg. 421; Pierce, R. R. 349; 1 Redf. Rys. 566; Whart. Neg. § 805.

The deceased was not guilty of contributory negligence, because he was absorbed in his work as switchman, and because he had a right to assume that, if appellant's employes could see him, they would not back a train upon him while engaged in his work as switchman, and that, whether they saw him of not, they would give him proper warning by the usual or necessary signals. Railroad Co. v. McLin, 82 Ind. 435;Continental Imp. Co. v. Stead, 95 U. S. 161;Crowley v. Railroad Co., 20 N. W. Rep. 467;Railway Co. v. Yundt, 78 Ind. 373. The rule of contributory negligence is less strict in case of a switchman busily engaged in his work than in case of a traveler at a crossing. Ominger v. Railroad Co., 4 Hun, 159; Goodfellow v. Railroad Co., 106 Mass. 461;Mark v. Railway Co., 20 N. W. Rep. 131.

Mitchell, J.

Long, as administrator of the estate of Charles Hampton, deceased, sued the appellant railway company to recover damages for wrongfully and negligently causing the death of the decedent. The paragraph of the complaint to which the evidence seems to have been addressed, charges that the negligence consisted in the employes of the railway company backing a locomotive engine and certain cars, under their control and management, over and upon Hampton, without giving him warning of their approach, and in violation of sections 1 and 2 of an ordinance of the city of Indianapolis; the accident having occurred in that city. These sections provided, in substance, that it should be the duty of every engineer, conductor, or other person engaged in running a locomotive engine to ring the bell attached thereto whenever the same should be moving through the city, and that it should be unlawful to run any locomotive or train of cars backward, in or through the city, without stationing a watchman or other person on the rear end of the train, in order to avoid accidents. The jury returned a general verdict for the plaintiff, assessing his damages at $4,000. They also returned answers to 52 special interrogatories. There was a judgment upon the verdict. Various incidental questions are presented, but, upon careful consideration, it seems to us the merits of the whole controversy are all involved in a single inquiry, and that is, can the verdict and judgment be maintained upon the undisputed facts, as they are disclosed by the record?

We shall regard the special findings of the jury, together with the admitted facts, and such as are supported by reasonable and uncontradicted evidence, as embracing the established facts in the case. Briefly stated, the facts thus established are as follows:

On the fifteenth day of November, 1883, and for some time prior thereto, the plaintiff's intestate, an experienced switchman and brakeman, familiar with the locality and the movements of trains at the place where he was injured,was in the service of the Indianapolis & St. Louis Railway Company, attending a switching engine, which was used in transferring cars from one point to the other, in the city of Indianapolis, on and over the tracks of the Union Railway Company. At the point where the injury occurred, and for some distance either way, the Union Railway Company had two tracks lying parallel with each other, running substantially east and west. There was an intervening space of seven feet and ten inches between the north rail of the south track, and the south rail of the north track. In this space there was a switch standard, the center of which was three feet and eight inches from the north rail of the south track, and four feet and two inches from the south rail of the north track. This standard was designed for use in moving a switch for the purpose of switching cars on and off the north track. The tracks were of standard gauge, and box cars passing over them extended over the rails from one foot eight inches to two feet two inches. The appellant's track, as also those of other railways, connect with the Union tracks, which are used under certain regulations by the several railway companies centering in the city, for switching cars, and other local purposes. At the time of the accident, the Union tracks were being used by the appellant and the Indianapolis & St. Louis Railway; a train belonging to the latter company having backed from the east, over the south track, passing over a switch to the north track, where it was standing or slowly moving.

In the line of his duty, the plaintiff's intestate had occasion to go to the switch standard above described, in order to adjust the track for the movement of the train, with the operation of which he was connected. While he was occupied about the matter of attending to the switch, the appellant's servants, with a train consisting of an engine and three box cars attached thereto, were backing westwardly, in the direction of the switch standard, along the south track. They were proceeding at a rate of speed less than four miles an hour, with the bell ringing continuously, and a full complement of men at their proper places, one of the brakemen occupying a place as lookout on the rear car of the backing train. The train thus backing was in full view of the switch standard, at or near which the deceased was struck, for a distance of 142 feet, and the jury find that the deceased could have seen the approaching train if he had looked in that direction. The uncontradicted testimony of the brakeman, who was on the rear end of the backing train, was to the effect that, when the train came in sight of the standard, he saw and recognized the deceased walking westwardly towards the standard, and that he was at that time a car-length or more distant therefrom. Whether he was walking on the track, or in the space between, does not very clearly appear. When within eight or ten feet of the standard, the deceased looked directly at the backing train, and the watchman on the rear car, believing that the deceased saw the train, gave him no special warning of its approach. It does not clearly appear whether the deceased had thrown, or was just about to throw or turn, the...