Cleveland, C., C. & St. L. Ry. Co. v. Wolf
| Decision Date | 02 January 1919 |
| Docket Number | No. 23532.,23532. |
| Citation | 121 N.E. 438 |
| Court | Indiana Supreme Court |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. v. WOLF. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Bartholomew County; John W. Donaker, Special Judge.
Action by Fred Wolf, administrator, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from Appellate Court under Burns' Ann. St. 1914, § 1394. Affirmed.
Superseding opinions in 114 N. E. 236, and 118 N. E. 129.
Carter & Morrison, of Shelbyville, for appellant.
Osborn & Hamilton, of Greensburg, for appellee.
Action by appellee, as administrator of the estate of Burney Wolf, deceased, to recover damages for the death of his decedent, alleged to have been caused by negligence on the part of appellant.
The complaint contains four paragraphs, which are similar in their allegations of fact, and, for the purposes of this appeal, there is no occasion to consider the averments of each in detail. It is alleged generally, however, that appellant is a corporation organized and incorporated under the laws of Indiana and Ohio, and is engaged in the operation of a railroad through certain counties in each of said states; that decedent was employed by appellant as a brakeman on said railroad, and in the course of his employment was required to couple and uncouple cars; that on May 24, 1905, appellant operated a certain freight train over its said road in charge of a conductor, who had the control and management of said train and the employés thereon, including decedent, whose superior he was; that on said day, at Valley Junction, Ohio, decedent was directed by said conductor to couple a car to the train on which he was employed; that said car was equipped with a coupling device so arranged that, when the same was in proper condition and repair, the car could be coupled to a train by turning a handle which was connected with, and raised and lowered, the coupling pin, thus making it unnecessary for the employé to place himself between the cars; that appellant had negligently permitted said coupling device to become defective, and choked and blocked with sand, so that the connecting rod would not operate and raise the coupling pin, and there was then no other way or means of raising the pin and making the coupling than for decedent to step between the cars and raise the pin with his hand; that decedent did, in fact, step between said cars and raised the coupling pin; that as he attempted to step back from between the cars his foot caught in a guard rail on the track, and he was unable to release it; that while decedent was in this position the conductor, who was in charge of the train, carelessly and negligently directed the engineer to start said train, with the result that said train did start and run over decedent, to his resulting injury and death; that, at the time said signal and direction to start said engine and cars was given by said conductor, he was within 6 feet of and was looking directly at decedent, and by the exercise of care could have known and did know that decedent was between said cars and in a place of danger, and liable to suffer injury by the movement of said cars; that it was the duty of said conductor not to order said cars to be moved until decedent was out from between said cars and out of said place of danger. Certain statutes alleged to have been in force on the day in question as a part of the law of Ohio are pleaded in and as a part of the complaint, but need not be here referred to in detail. One of such statutes made it unlawful for a railroad corporation “to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective,” while another in its effect provided that appellant's said conductor, at the time and in the work in which they were engaged, was the superior, and not a fellow servant, of decedent.
[1] In support of its demurrer to each paragraph of complaint, appellant asserts that said pleadings are insufficient, on account of a failure to negative decedent's assumption of the risk which resulted in his injury, and because it is not specifically alleged that appellant had knowledge of the defective machinery or appliances on its said car. In passing on these questions, and all others which present matters of procedure, the law of Indiana is to control, although the substantive cause of action, if any, is given by the law of Ohio. Chicago, etc., R. Co. v. Vandenberg, 164 Ind. 470, 488, 73 N. E. 990.
[2] Appellant asserts that the complaint shows an attempt to plead concurrent acts of negligence, which united in causing the injury, and that each must therefore be properly pleaded. While it is true that a violation of the Ohio statute relative to unsafe machinery and appliances is charged, the effect of that negligence was only to require decedent, in the discharge of his duties, to step between the cars and thus expose himself to danger. The actual injury, however, is alleged to have resulted from the negligence of the conductor, operating independently, and after decedent was in a position of danger, and the complaint must be held sufficient as against the objections urged, if the latter element of negligence is well pleaded. Under the law of Ohio, which fixed the relation of the parties, appellant's conductor stood as a vice principal to decedent, and, under the facts shown in the complaint, the risk which resulted from his affirmative and unforeseen act of negligence was not assumed by the employé. Nall v. Louisville, etc., R. Co., 129 Ind. 260, 272, 28 N. E. 183, 611;Hammond v. Kingan & Co., 53 Ind. App. 252, 257, 101 N. E. 385.
The demurrers to the several paragraphs of complaint were properly overruled.
[3] The next assignment relates to the overruling of a motion to make the third paragraph more specific, by describing the particular defects in the coupling apparatus. Although such a motion, when well founded, ought usually to be sustained, the rule is well established that the overruling of a motion to make more specific does not ordinarily constitute reversible error (Board State ex rel., 179 Ind. 644, 646, 102 N. E. 97;Adams Express Co. v. Welborn, 59 Ind. App. 330, 332, 108 N. E. 163, 109 N. E. 420), and we see nothing in the present case which prevents an application of the general rule, particularly in view of the fact that the jury, in its answers to interrogatories, found that the only defect shown in evidence was causedby the presence of sand in the coupling apparatus, and that condition is described in the pleading.
The sixth assignment of error is based on the overruling of appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict. So far as material to this inquiry, the answers to interrogatories show that at the time of his injury decedent was in the employ of appellant as brakeman on a gravel train which was being operated over appellant's railroad; that he was an experienced brakeman, and acquainted with appellant's rules governing the movement of trains and the duties of trainmen with reference thereto; that the cars which injured decedent were equipped with automatic couplers, which had become choked and clogged with sand and gravel, so that, in coupling the same, it became necessary for the trainmen to go between the cars and operate the coupling apparatus by hand; that it was the duty of decedent, as a brakeman, to couple and uncouple cars, and in the discharge of such duty, and without special orders from any one, he undertook to make the coupling which is described in the complaint; that the coupling failed to make when the cars first came together, whereupon decedent went between the cars to adjust the apparatus; that appellant's conductor was standing about 30 feet from the place of the injury and in a position to see decedent when he went between the cars; that after decedent had gone between the cars he said to the conductor, “All right, back up,” whereupon the conductor signaled the engineer to back the train; that the conductor heard what decedent said when he was between the cars, and gave the signal to the engineer in response thereto; that there is no evidence that decedent directed the movement of the train, but the conductor understood from what he said that he directed that the train should be backed, and that railroad men generally would so understand his statement; that the movement of cars while decedent was making the...
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