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

• Decision Date: 28 October 1921
• Docket Number: No. 10885.,10885.
• Parties: CLEVELAND, C., C. & St. L. RY. CO. v. MANN.
• Court: Indiana Appellate Court

76 Ind.App. 518

132 N.E. 646

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

v.MANN.

No. 10885.

Appellate Court of Indiana.

Oct. 28, 1921.

Appeal from Circuit Court, Morgan County.

Action by Sophie Mann, administratrix, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Miller, Dailey & Thompson, Frank L. Littleton, and Forrest Chenoweth, all of Indianapolis, for appellant.

Felt & Forney and Beckett & Beckett, all of Indianapolis, for appellee.

NICHOLS, P. J.

The second paragraph of the fourth amended complaint on which this case was submitted to the jury averred in substance that appellant, a common carrier, employing more than five men, at the time of the occurrence involved, operated lines of railroad in and through the city of Indianapolis, and employed appellee's decedent, Calvin Mann. That certain of its lines of railway track intersect East St. Clair street in said city, which said street extends east and west. Near and at the point where the said street is crossed by the said tracks, it is almost constantly traveled by the public on foot and in vehicles. At said crossing it jogs in a northeasterly direction across the said tracks, and the north side of said street immediately west of the said tracks is approximately 30 feet farther south than the south side thereof immediately east of said tracks. That the view of said railroad tracks to the south of said crossing from the west on said street is obstructed by buildings and a high board fence abutting the sidewalk on the south side thereof and immediately west of where one of appellant's line of tracks cross the same.

Said conditions at said crossing were well known by the said servants of appellant operating the locomotive involved at and for a long time prior to the 14th day of October, 1917. On said 14th day of October, 1917, and for many years prior thereto, appellee's decedent was in the employ of appellant as a switchman, and as such it was his duty to sort and distribute and to assist in sorting and distributing freight cars, and in performing his said duties it was necessary for him to ride upon the engines engaged in such switching and upon the cars being switched. One of his acts of service required by appellant's rules was to ride on the footboard of the switch engine to give and take signals from the enginemen. Upon said date while in the discharge of his said duties as a switchman, he was riding on the footboard on the rear end of one of appellant's locomotives, which was backing and pulling nine freight cars in a northerly direction south of the said street crossing. He was standing on the west end of said footboard as said locomotive backed to the north. Said locomotive at the said time was backing north on the west track, which would be first crossed by a traveler coming from the west on the said street. Appellant negligently backed said locomotive toward and onto said crossing and against an automobile truck on said crossing at too high a rate of speed, to wit, 35 miles per hour, and negligently failed, through its engineer and fireman, to keep a sufficient lookout, and thereby jammed appellee's decedent, who was on the front step of said locomotive, against said truck, and thereby negligently injured and killed him. Appellant was further negligent in that when it backed or shoved said locomotive against said truck it knew, through its engineer and fireman in charge of it, that appellee's decedent was on said front step and in great peril, but notwithstanding said knowledge, appellant negligently ran said locomotive against said truck and pinioned and held said decedent between the front part of said locomotive and said truck and negligently failed to apply the brakes and thereby stop said locomotive, but negligently shoved said truck about 100 feet, with said decedent between said automobile and said engine, and thereby negligently crushed, injured, and killed him. Appellant was guilty of further negligence which was the proximate cause of the injury and death aforesaid, in that it negligently and unlawfully backed said locomotive toward and upon said crossing at said time without the bell attached to said locomotive being rung, as required by an ordinance of the said city which at the time was in full force and effect, and was as follows:

“2292. Ringing Bell.-Be it ordained by the common council of the city of Indianapolis, that it shall be the duty of every engineer, conductor, or other person engaged in running any locomotive, to ring the bell attached to such locomotive whenever the same shall be moving in or through this city.”

By reason of the failure of appellant's engineer and fireman so to ring said bell as it approached said crossing and ran onto the same, the driver of said truck was unable to discover the approach of said locomotive and train of cars from the south, and was thereby misled and deceived and induced to go upon said track at said crossing at the time when said backing locomotive was so near that said driver was unable to stop or drive over said crossing before being struck by said backing locomotive. Had appellant so rung said bell as by said ordinance required, the driver of said truck as he approached and came near said crossing from the west would have heard said bell and refrained from going onto said track at said time, and thereby avoided said collision, and the injury and death of appellee's decedent. Decedent did not discover said truck as it approached said crossing from the west and ran onto said track, and did not know that said automobile was approaching and near said crossing in time to avoid said collision, and thereby escape injury and death.

Appellant moved to require appellee to make her complaint more specific, which motion was overruled. There was an answer in denial, the cause was submitted to a jury for trial, and a verdict was returned for appellee for $5,000. Appellant assigns as error the action of the court in overruling its motion to make more specific, and in overruling its motion for a new trial.

[1] Appellant...