Cleveland, C., C. & St. L. Ry. Co. v. Goddard
| Decision Date | 08 June 1904 |
| Docket Number | No. 4,892.,4,892. |
| Citation | 33 Ind.App. 321,71 N.E. 514 |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. v. GODDARD. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Decatur County; J. K. Ewing, Special Judge.
Action by John F. Goddard, as administrator of the estate of John H. Binder, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
L. J. Hackney, for appellant. Bennett & Davidson and Craig & Smiley, for appellee.
Appellee sued appellant for damages sustained in the personal injury and death of John H. Binder, an employé of appellant, resulting from the alleged negligence of the appellant. The issues were formed upon an amended complaint in one paragraph, to which the trial court overruled a demurrer, and upon the appellant's answer in general denial. A trial by jury resulted in a general verdict in favor of appellee for $2,800. With the general verdict the jury returned answers to special interrogatories. The court overruled appellant's motion for judgment non obstante.
The first specification of error questions the sufficiency of the amended complaint; the second, the action of the court in overruling appellant's motion for a new trial; the third, the overruling of appellant's motion for judgment non obstante.
The amended complaint is based upon subdivision 4 of section 7083, Burns' Ann. St. 1901: “Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any *** switch yard.” The complaint avers that on the 8th day of March, 1901, the appellant maintained railway yards on the west side of Greensburg. In the yards were several tracks, one of which was known as the “Chicago Passing Track,” and another as “Storage Track No. 8.” This storage track was connected and disconnected from the passing track with a switch at the east end of the storage track. On the evening of that day John H. Binder was an employé of appellant, engaged as brakeman on a mixed train which had come into the yard from Columbus. The engine, with the freight cars of the train, had gone forward upon the passing track to a point east of the switch, and it was desired to back the cars over the passing track and upon said storage track. It was Binder's duty to open the switch to admit the cars, and, as the cars were backed toward the switch, he preceded them, turned the switch, and continued west on the passing track. Shortly before Binder went to the switch, one Charles Simcox, the yardmaster, had opened the switch for said cars, thus connecting said storage track with the passing track, and placing the same in position to admit said cars upon the storage track. Binder reversed the switch, diverting the cars from the storage track, and continuing them upon the passing track, where they ran over him and inflicted the injuries from which he died. The switch was operated by hand, and was controlled by throwing a lever. Its normal and usual position disconnected the storage track from the passing track.
The essential allegations, in addition to the facts above stated, are as follows: That the rules of defendant in force at said time required that said ground switch should remain in its normal position as aforesaid, unless it was changed for the purpose of putting cars into or taking cars out of said storage tracks as aforesaid. That it had been the practice and custom of defendant's servants using said switch and tracks, for at least one year prior to decedent's injury, to leave said ground switch in its normal position, until it became necessary to disconnect from the passing track and connect with the storage tracks, which custom and practice was known to both defendant and decedent. That a short time before plaintiff's decedent reached said ground switch as aforesaid, for the purpose of throwing the same as aforesaid, and without any notice or warning to the plaintiff's decedent of his intention so to do, said Simcox carelessly and negligently and wrongfully threw said ground switch from its normal position, and carelessly, negligently and wrongfully disconnected said track, coming from the east as aforesaid, from said Chicago passing track, and connecting said track from the east, and being the same track over which said west-bound freight cars should pass, with said storage track No. 8. That it was no part of the duty of said Simcox as such yardmaster to throw said switch. That the said Simcox carelessly and negligently failed to notify plaintiff's decedent, or give him any notice or warning whatsoever, of his intention to throw said switch before he did throw the same, and carelessly and negligently failed to notify the plaintiff's decedent that he had thrown the said switch and disconnected said storage track from said passing track, and connected said track from the east with the said storage track. That plaintiff's decedent had no notice, knowledge, or warning that the position of said ground switch had been changed, nor that said track from the east had been disconnected from said Chicago passing track and connected with said storage track No. 8, but believed that said track from the east was connected with said Chicago passing track and disconnected from said storage track No. 8, and that said ground switch was in its normal position, and relied thereon, and could not have known thereof by the exercise of ordinary care and diligence, and without fault or negligence on his part threw said switch to connect said track from the east with said storage track, so that said west-bound freight cars could pass therein, and then passed from said switch over and upon said Chicago passing track to avoid said backing west-bound freight cars, and proceeded to pass along said Chicago passing track, going west for the further performance of his duties in connection with said west-bound freight cars. That at the time plaintiff's decedent was injured, and at the time that he threw the switch as herein averred, the night was dark and foggy.
In the discussion of the sufficiency of the complaint it is not claimed that it fails to charge negligence upon the part of appellant, but that it affirmatively discloses the contributory negligence of the decedent. In an action for personal injury under section 359a, Burns' Ann. St. 1901 (Acts 1899, p. 58, c. 41), it is only...
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