Cleveland, C., C. & St. L. Ry. Co. v. Gossett

• Decision Date: 10 March 1909
• Docket Number: No. 21,133.,21,133.
• Citation: 172 Ind. 525,87 N.E. 723
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. et al. v. GOSSETT.

172 Ind. 525

87 N.E. 723

CLEVELAND, C., C. & ST. L. RY. CO. et al.

v.GOSSETT.

No. 21,133.¹

Supreme Court of Indiana.

March 10, 1909.

Appeal from Superior Court, Marion County; Lawson M. Harvey, Judge.

Action by Hattie Gossett, administratrix, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

The sixth request of the Belt Line Company was that, if plaintiff's intestate had been a brakeman on the Big Four Road for 18 months before his death, and had passed over the Belt Line tracks several times a week for many weeks, during which time the semaphore signals were manipulated in the same way as they were manipulated when he was injured, he assumed the risk of injury from the operation of the signal.

Leonard J. Hackney, Frank L. Littleton, and Baker & Daniels, for appellants. Willard Robertson and Harding & Hovey, for appellee.

HADLEY, J.

Appellee's intestate, a brakeman on a freight train of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, appellant, and hereinafter designated as “Big Four,” was killed by falling between cars while the train was being transmitted over a portion of the railroad of the Union Railway Company, hereinafter designated as the “Belt Line,” by the alleged negligence of both said appellants.

The material averments of the first paragraph of the complaint are as follows: The Big Four Railway Company, in operating one of its lines from Brightwood to the city of St. Louis, Mo., uses a part of the tracks and equipment of the Belt Company, and in transmitting a Big Four freight train over the Belt, the employés in charge of the Belt Road, and those in charge of said train, in the handling and in directing the same, were in the common service of both defendants. That the plaintiff's intestate, Robert Gossett, was a brakeman on said Big Four freight train that left Brightwood for St. Louis, with orders to stop at Norwood, or Nigger Hill, to take on additional cars. That William Cates was the conductor and Thomas Cain the engineer in charge of the engine. The conductor was in control of said train, and had authority to give orders to said Gossett, as a brakeman thereon, and did order him to go on top of the train, near to the locomotive, while the train was in motion, and near to the point in said Belt Road where the same is crossed by the Cincinnati Division of the Big Four, in the vicinity of Norwood. The latter place is connected with the Belt tracks by a cross-over track, and near the said cross-over and the crossing of the Belt tracks by the Big Four, as aforesaid, the Belt Company maintains a signal, switches, and a side track in charge of its own employé as signalman and switchman, and it was the duty of said signalman to signal trains running on said tracks at that point, and to set and manage the switches and tracks so as to keep trains and cars clear and out of collision with each other, and to direct their movement in that behalf. Near the signal was a passing track on the north side, and connected with the track occupied by said freight train. Said freight train was in all things subject to said signalman's guidance at that point. That said signalman had been informed by the defendants of the orders of said freight train. That when the train approached near the signal the latter was so placed by the signalman as to signify to the engineer that he should bring the train to a stop. West of the signal the track upon which the freight train was running was obstructed by another train, which was known to the decedent. It was the duty of the defendants, and all persons in charge of the guidance of the train, to bring it to a full stop before it had reached the signal, and before it was run upon any different course, or track, in accordance with a published rule of the defendants, as follows: “If necessary to change any route for which the signals have been cleared for an approaching train, or engine, switches must not be changed or signals cleared for any conflicting route until the train, or engine, for which the signals were first cleared, has stopped.” Upon the display of said stop signal, Cain, in charge of the engine, applied the brakes, and was in the act of stopping the train, and the decedent then believed, and had a right to believe, that the train was about to be brought to a full stop. It was the duty of the defendants and said signalman and said engineer to bring the train to a full stop in compliance with said rule. “But disregarding their said duties, they did not stop said train, nor attempt to do so, but negligently and in violation of said rule caused same to be suddenly started anew with great force, without signal or warning to plaintiff's intestate, who had no knowledge or means of knowing that same would be done, as aforesaid. And said signalman, knowing that said train should be stopped, as herein averred, and having given signal to stop, and in violation of said rule and without exercising due care, negligently, and as said train was nearing said signal, manipulated same and changed and cleared signal so as to signal that said train might go forward and negligently, and in violation of said rule, manipulated and changed said switch tracks so as to guide said train into said side track to the north and parallel with the track upon which said train was running, as aforesaid. And said engineer in charge of said locomotive engine, having said train orders and full knowledge of same and knowledge of said rules governing him in the management of said train, and well knowing that he should not run upon said switch nor change the route over which his said train orders directed him, until he had stopped said train, and was fully informed of a change in his orders, and the reasons therefor, negligently on receiving said signal of the signalman started his engine anew with great force without bringing same to a stop, or attemptingto do so, and ran said train into said side track.” It is further averred that, when the train was started anew for the purpose of running into said side track, the decedent was on top of the train, where he was ordered by his conductor to go, and, while in the exercise of due care, the negligent acts of the defendants-the signalman and engineer, aforesaid-caused the decedent to be jerked and thrown between the cars and killed. The defendants separately demurred to each paragraph of the complaint, which being overruled, issues were joined by the general denial. There was a verdict and judgment for the plaintiff against both defendants.

The first question presented is: The sufficiency of the first paragraph of the complaint. The Big Four Company presents two objections to this paragraph: First, because it fails to show the breach of a duty owing by the defendant to the decedent; and, second, because it fails to show that the cause of injury was not one of the risks assumed by an acceptance of the employment. It is clear that the liability of the defendants can only be affirmed upon the theory that both a violated duty and a nonassumption of the risk are shown. City of Indianapolis v. Emmelman, 108 Ind. 530-532, 9 N. E. 155, 58 Am. Rep. 65; C., C., C. & St. L. Ry. Co. v. Parker, 154 Ind. 153, 56 N. E. 86. The theory of the first paragraph is that the decedent lost his life by the negligent handling of the train on which he was employed by the engineman in charge of the engine failing to bring the train to a full stop before reaching a stop signal, and by the negligence of the Belt signalman, in charge of the semaphore, in changing the stop signal to a proceed before the train had stopped, and by the further negligence of said engineer in suddenly, and, without any warning to the deceased that he was about to do so, increasing the speed of the train by an unexpected and violent jerk, which threw the decedent off the train and between the moving cars-all in violation of clause 4 of section 1 of the employer's liability act (Burns' Ann. St. 1908, § 8017) and of rule 79 of both defendants.

It is the duty of the master to protect his servant against the master's own negligence, and against all unusual and unexpected perils of the employment known to the master and unknown to the servant, and which the latter might not learn by the exercise of reasonable care. Pennsylvania Co. v. Ebaugh, 152 Ind. 531-534, 53 N. E. 763; Railroad Co. v. Bundy, 152 Ind. 590-596, 53 N. E. 175. It is clearly charged in the first paragraph that the accident happened by the negligence of the defendants' employé in charge of a signal, and by the negligence of their engineer in charge of the engine drawing the train, without any fault or negligence on the part of the decedent, and that the decedent and said employés were fellow servants engaged in the same common service. By clause 4 of section 8017, Burns' Ann. St. 1908, it is made a railroad company's duty to answer to its employé who has been injured, without the latter's fault, by the negligence of a co-employé in charge of a switchyard, a signal, or locomotive engine. This duty is defined and imposed by the Legislature, and cannot be waived, assumed, or escaped. Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319;Bessler v. Laughlin, 168 Ind. 38-43, 79 N. E. 1033; Island Coal Co. v. Swaggerty, 159 Ind. 664, 62 N. E. 1103, 65 N. E. 1026. A railroad brakeman, being himself in the observance of due care and diligence, under section 8017, supra, has the right to presume that fellow employés in charge of a signal or locomotive engine attached to his train will not be guilty of negligence in maneuvering or manipulating such railroad appliances. He will not be held to have assumed a risk which the statute requires the master to assume. Diamond Block Coal Co. v. Cuthbertson, 166 Ind. 290, 76 N. E. 1060. The first paragraph charges that the defendants' employé in charge of a signal...