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

• Decision Date: 28 November 1916
• Docket Number: No. 8752.,8752.
• Citation: 114 N.E. 236
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. WOLF.

114 N.E. 236

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

v.WOLF.

No. 8752.^*

Appellate Court of Indiana, Division No. 1.

Nov. 28, 1916.

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. From a judgment for plaintiff, defendant appeals. Reversed, with instructions.Carter & Morrison, of Shelbyville, and Baker & Richman, of Columbus, for appellant. John E. Osborn, and Frank Hamilton, both of Greensburg, and J. E. Cox, of Terre Haute, for appellee.

McNUTT, J.

This was an action by appellee, as administrator, to recover damages sustained by the next of kin by reason of the death of Burney Wolf, a minor, alleged to have been caused by appellant's negligence.

The cause was commenced in Decatur county, and on a change of venue taken to Rush county, where it was twice tried, the jury disagreeing each time. The venue was changed to Bartholomew county, where it was tried three times, and the jury disagreed each time, except the last when a verdict was returned for appellee upon which judgment was rendered for $2,000.

The errors assigned for a reversal are: (1) Overruling of appellant's demurrer to each paragraph of complaint consisting of second to fifth, inclusive; (2) its motion to make the third paragraph of complaint more specific; (3) its motion for judgment upon the answers to interrogatories, notwithstanding the general verdict; and (4) its motion for a new trial.

The general allegations of the various paragraphs of complaint show, in substance, the following facts:

That appellant is a corporation organized and incorporated under the laws of Indiana and Ohio, operating a railroad through certain counties in said states. That decedent was employed by appellant as a brakeman, and in the discharge of his duties was required to couple and uncouple cars. That on May 24, 1905, appellant operated a freight train over its road in charge of a conductor, who had the control and management of same, and the employés thereon, including decedent, whose superior he was. That at said time appellant had established and in force certain printed rules, one of which read as follows:

“Conductors are responsible for the general direction and government of trains. Their proper orders must be complied with by all employés on the train, including sleeping, parlor, and dining car conductors and attendants, express messengers, and news agents.”

That on said day at Valley Junction, Ohio, decedent was directed by said conductor to couple a car to said train; that the car was equipped with coupling machinery so arranged that when same was in proper condition and repair, a car could be coupled to the train by turning a handle which connected with, and raised and lowered, the coupling pin by an iron rod, whereby the car would be coupled to the train without decedent placing himself between the cars. That appellant had negligently permitted said coupling machinery and rod to become defective and choked and blocked with sand, so that the 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 said pin with his hand. That pursuant to the directions of the conductor to couple said car, decedent attempted to do so by turning the handle which was connected with the coupling pin by the iron rod, and by reason of the defective condition of the coupling machinery same would not operate or raise the pin so as to make said coupling, whereupon he stepped between the cars and raised said pin. That he then attempted to step from between the cars and his foot caught in the guard rail on the track between the cars so that he was unable to release it, and while in this position the conductor of the train carelessly and negligently signaled and directed the engineer to start said train and cars. That pursuant to said signal the engineer did start the engine and train and the cars between which decedent was standing, and thereby the wheels of the cars were caused to run over his foot, and crushed and bruised him so that he died the same day. That at the time the signal and direction to start the engine and cars was given by the conductor and the train was started, said conductor was standing within six feet of and looking directly at decedent, and by the exercise of care could have known that he was in a place of danger and liable to suffer great injury by the movement of the cars. That it was the duty of the conductor not to order the cars to be moved until decedent was out of such dangerous place. That decedent's injury and death occurred in the state of Ohio, and at said time the law of that state in force as to the use of defective machinery and appliances read as follows:

“It shall be unlawful for any such 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. If the employés of any such corporation shall receive any injury by reason of any defect in any car or locomotive, of the machinery or attachments thereto belonging, owned and operated, or being run and operated, by such corporation, such corporation shall be deemed to have had knowledge of such defect before and at the time of such injury so sustained and when the fact of such defect be made to appear in the trial of any action in the courts in this state, brought by such employé, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation.”

That at the time the injury was inflicted there was in full force and effect in the state of Ohio a law (which is set out) declaring and by which said conductor at the time and in the work in which engaged, was the superior and not the fellow servant of decedent. That there was also a law in force at said time (which is set out) providing that where the death of a person is caused by the wrongful act of another an action at law for such wrongful death survives and may be brought and maintained against the wrongdoer by the administrator of the estate of the deceased person, and said law provides if decedent left no widow or child surviving, that the administrator in such action is entitled to recover for the benefit of the next of kin. That decedent was at the time of his death a resident of Decatur county, Ind., and left surviving him as his next of kin appellee, his father, who is the duly qualified administrator of his estate, his mother, two brothers, and a sister, all of whom reside in Indiana and received assistance and support from him during his lifetime.

It is claimed by appellant that the second paragraph of complaint charges the negligence of appellant to be that it permitted the coupling machinery to be out of repair, and by reason thereof it was necessary for appellee's decedent to go between the cars to do the coupling, and that when he was so between the cars, the conductor negligently signaled and directed the cars to be put in motion, and he was injured and died wholly through the negligence and carelessness of appellant as aforesaid.

It is insisted further, on behalf of appellant, that there was a concurrence of the negligent acts complained of, causing the injury, and therefore both acts must be pleaded. It is argued that the complaint is bad because the assumption of risk is not negatived, and because there is no allegation that appellant knew the machinery and appliances were out of repair.

The objection to the third paragraph of complaint is that it does not deny the assumption of risk, and that it does not specifically allege that appellant knew the machinery or appliances were out of repair. It is also argued that the statute quoted, which makes the fact of such defect prima facie evidence of negligence on the part of appellant, applies only to suits brought in the state of Ohio.

The negligence charged in the fourth paragraph of complaint is the use of defective coupling appliances and the negligence of the conductor in starting the train. It is argued that the complaint is bad because the assumption of risk is not denied, and because the statute upon which it is insisted the cause of action is based is not set out according to its tenor. It is also insisted that the complaint is bad because it does not allege that appellant knew the machinery or appliances were out of repair.

It is argued that the fifth paragraph is bad because it does not deny the assumption of risk, and because it does not charge that appellant knew the machinery or appliances were out of repair. It is further argued that this paragraph is bad because it is not charged that the conductor knew when he signaled the engineer to move the cars that the decedent's foot was caught in the rails.

[1] In view of the conclusion which we have reached, we deem it unnecessary to enter into a discussion of the sufficiency of the various paragraphs of complaint, except to say that the law of Ohio is to control, except in matters of procedure, such as admissibility of evidence, burden of proof, etc., which must be controlled by the law of this state. Chicago, etc., Co. v. Vandenberg, 164 Ind. 470, 489, 73 N. E. 990, and cases therein cited.

[2] Since there is nothing in the complaint to show that decedent did not assume the ordinary risks incident to his employment, we must assume that he did so, because the presumption is that the common law, at the time of the injury, as enforced in this state, was in force in Ohio. Baltimore R. Co. v. Adams, 159 Ind. 694, 66 N. E. 43, 60 L. R. A. 396;Smith v. Muncie National Bank, 29 Ind. 158;Baltimore R. Co. v. Jones, 158 Ind. 87-89, 62 N. E. 994;Jackson v. Pittsburgh, etc., R. Co., ...