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

• Decision Date: 11 March 1904
• Citation: 33 Ind.App. 404,70 N.E. 283
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. LINDSAY.
• Court: Indiana Appellate Court

33 Ind.App. 404

70 N.E. 283

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

v.LINDSAY.¹

Appellate Court of Indiana, Division No. 2.

March 11, 1904.

Appeal from Circuit Court, Hendricks County; Thomas J. Cofer, Judge.

Action by Leonia Lindsay, administratrix of Howard Lindsay, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.Elliott, Elliott & Littleton, for appellant. Wm. V. Rooker, for appellee.

COMSTOCK, J.

Appellee brought this action, as administratrix of the estate of Howard Lindsay, deceased, against appellant, to recover damages for the death of appellee's decedent, occasioned by the alleged negligence of appellant. The cause was tried upon an amended complaint in five paragraphs, to each of which a general denial was filed. The trial resulted in a verdict and judgment for appellee in the sum of $2,500. The errors relied upon are the overruling of appellant's separate demurrers to each paragraph of the amended complaint, and the overruling of appellant's motion for a new trial.

Briefly summarized, the negligence attempted to be charged in the respective paragraphs of amended complaint is as follows: In the first: Bringing into the train upon which the plaintiff's intestate was to work a car with a wrong and defectively constructed coupling apparatus. In the second: That the engineer in charge of the engine attached to the train upon which the plaintiff's intestate was to work negligently disregarded signals, and ran the train at a negligent, careless, and wrongful rate of speed. In the third: That the coupling apparatus upon a car upon which the plaintiff's intestate was required to work was so out of repair as to require the plaintiff's decedent to go between cars, to uncouple them, when running at a great rate of speed, thereby causing his death. In the fourth: That the yards of the defendant, where the plaintiff's intestate was required to work, had been left broken and rotted and uneven, so as to render the place where he was required to work dangerous and unsafe. In the fifth: That the engineer moved the train, on which the plaintiff's intestate was at work, in disobedience of signals.

The first paragraph of the amended complaint, omitting the formal parts, is as follows:

“That on the 21st day of January, 1898, plaintiff's decedent was in the employ of defendant as switchman, in the yards of the defendant, east of and adjacent to the city of Indianapolis, and as such switchman was engaged in the discharge of the duties appertaining to his position, and in the performance of duties imposed upon him by those in charge and having authority over him, acting for and in behalf of said defendant. That on said date he was directed by those in authority, acting for and in behalf of said defendant, to throw the switches along the tracks of said defendant, and cut off and switch cars in a train of said defendant, at the time being operated along the tracks and switch of said defendant. That the train consisted of an engine and numerous freight cars, brought to the point of work by employés of defendant having charge thereof, and acting for and in behalf of defendant. That, among the cars of said train being so handled, there was one so defectively constructed and negligently brought into said train as to endanger the limbs and lives of those called upon to handle it in this, to wit: That the brake extended over and beyond the end of the car, and the lever upon the outside end of said car for operating the coupler had been placed in its construction or repair upon the wrong side of the car, and no lever or other thing for use as such had been placed on the side that should have had a lever; that the chain for upholding the link of said coupler was broken, and the lug of said pin was worn out and would not support said pin, of which fact plaintiff's decedent had no knowledge. That in the performance of his duties, and while said train was moving at a rapid rate of speed, plaintiff's decedent was required to separate the defective car, as aforesaid, from the car attached to it, and by reason of said careless and negligent construction, and said careless and negligent placing of said car entrain, plaintiff's decedent was compelled to go between said cars, and was crushed and mangled, so that he died from the effects thereof.”

Various objections are made to this paragraph; among others, that it does not allege that the decedent did not know that the lever was on the wrong side; that it appears that the location of the lever caused him to go between the cars. The allegation so to the lever may be taken as showing the circumstances under which the decedent attempted to uncouple the cars. It does allege that he had no knowledge that the chain and pin were broken, but in this paragraph negligence is not attributed to that of which the decedent was ignorant. It is further pointed out that said paragraph does not allege the knowledge on the part of the employer. For these reasons the paragraph is bad. Ohio Valley, etc., Ry. Co. v. Goble, 28 Ind. App. 362, 62 N. E. 1025;Cleveland, etc., Ry. Co. v. Scott, 29 Ind. App. 519, 64 N. E. 896;Creamery v. Hotsenpiller, 24 Ind. App. 122, 56 N. E. 250;Atchison, etc., Co. v. Tindall (Kan. Sup.) 48 Pac. 12;Evansville, etc., R. Co. v. Duel, 134 Ind. 156, 33 N. E. 355.

The part of the second paragraph questioned by the demurrer is as follows: “That the engine, while manipulating such train, was in charge of an engineer of the defendant, acting for and in behalf of said defendant, and representing it in that capacity; and that said engineer, negligently and carelessly disregarding the signals given by him, ran such train at a negligent, careless, and wrongful speed along the tracks and the switches of said defendant, so as to endanger the lives and limbs of those called upon to perform their duties in connection with...