Cleveland, C., C. & St. L. Ry. Co. v. Powers
| Decision Date | 02 July 1909 |
| Docket Number | No. 21,319.,21,319. |
| Citation | 173 Ind. 105,88 N.E. 1073 |
| Court | Indiana Supreme Court |
| Parties | CLEVELAND, C., C. & ST. L. RY. CO. v. POWERS. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Decatur County; Marshall Hacker, Judge.
Action by George Powers against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.Leonard J. Hackney, Frank L. Littleton, Thomas L. Stitt, and Carey E. Cowgill, for appellant. Ewing & Hamilton, for appellee.
This action was instituted by appellee against appellant for damages for personal injuries alleged to have been inflicted by appellant on appellee.
The complaint is in one paragraph. The material allegations are that appellant, at the city of Greensburgh, has a large track yard, containing about 60 acres of ground, covered with tracks, main tracks, side tracks, switches, and spurs, amounting to 7 miles of track, through and over which all incoming and outgoing trains pass and repass, such yards being in charge of a yardmaster and switching crew, with switch engines, repair shops, and roundhouse. That appellant maintained and operated a network of interlocking switches manipulated by hand and electricity in said yards, and that the switching of cars and transferring of trains from Louisville, Cincinnati, Indianapolis, St. Louis, Chicago, and intermediate points, as well as the passage of through trains through said yards, rendered it extremely dangerous and extra hazardous for pedestrains or workmen to enter into said yards, or upon the tracks therein, all of which was well known to said defendant. That appellee was a laborer in the employ of appellant, working under the immediate command of a foreman in charge of about 20 men, including plaintiff, all of whom were subject to his directions and command. That plaintiff and said crew were ordered by said foreman for several days prior to February 19th, and on that day, to report for duty at the yard office situated in and upon said yards, not later than 6 o'clock a. m. each day. That on the 19th day of February, 1907, at the hour of 6 o'clock a. m., deep darkness and a dense fog hung over the earth, and plaintiff, at such hour, in strict obedience to the command of appellant made by its said foreman, proceeded to said yard office, in compliance with such order, which order plaintiff was bound to obey. That there was no way to reach such yard office without passing on and over such tracks through such yard, and that appellant on said date, and for a long time prior thereto, permitted its said employés to pass and repass over said tracks in said yards in going to and returning from said yard office, and that such use was with the knowledge and consent of defendant. That there was at that time in force in the territory covered by such yards an ordinance of the city of Greensburgh limiting the speed of trains to 12 miles an hour. That at the same time a regular schedule or time card for the arrival and departure of trains was in full force, showing the time for the departure of train No. 31 south bound for Louisville, Ky. That plaintiff was familiar with the time of the departure of train No. 31, and with the track over which said train usually left Greensburgh for the south, viz., the south main track. That on the morning of February19, 1907, between the hours of 5 and 6 o'clock a. m., this plaintiff, using all possible care to avoid danger, and in obedience to the orders of his foreman, to whose orders he was bound to conform, in the darkness and dense fog which hung over such yards, was carefully proceeding to obey such orders, and, to avoid an east-bound train then approaching, he stepped off of said south main track, and onto the north main track, where no train was scheduled to run at any time within one hour, and where he did not expect and had no reason to expect any train to run. That he was immediately struck and injured, as hereinafter stated, before he had time to look or listen for train No. 31. That appellant carelessly, negligently, recklessly, and unlawfully, and in violation of said ordinance, and in total disregard of the rights of plaintiff, ran its south-bound train No. 31 at an unlawful rate of speed, to wit, 25 miles per hour, from behind him, over and upon a track not usually traveled by said train, and about 1 hour out of schedule time, without sounding the whistle or ringing the bell, and, without giving any warning or notice to plaintiff, ran into and struck the plaintiff from the rear, while he was watching an incoming train from the opposite direction on the immediately adjoining track, to wit, the north main track, severely injuring him. That the plaintiff's injuries were caused by the negligence of said defendant in not furnishing plaintiff with a safe and suitable place to work, and in putting him in danger, and not using care commensurate with the danger to which they exposed him, by running said train No. 31 at an unlawful rate of speed, in violation of a city ordinance, and on the wrong track, and out of schedule time, recklessly, in a place of danger, through deep darkness, dense fog, without ringing the bell, sounding the whistle, or giving any warning to plaintiff of the approaching danger.
The sufficiency of this complaint is attacked upon the grounds: (a) That there is no allegation that plaintiff was without knowledge of the danger, and that he did not assume the risk; (b) that it is not shown that appellant owed appellee any duty which it violated, and, under this heading, that it owed appellee no duty to run its trains on schedule time, or within the ordinance rate, or that the increased rate was the proximate cause of the injury, or that it owed him any duty, as to signals, or violated any duty owing him as to giving signals, or that he would have heeded the signals if given; that it is not shown that any of the things alleged to have been negligent had anything to do in relation to cause and effect, with relation to appellee's injuries; (c) that the complaint affirmatively shows that, if not a trespasser, appellee was a licensee, to whom appellant owed no duty, and that he was bound to accept the conditions as he found them; (d) that the complaint shows him to have been negligent in selecting the place he did; (e) that it is not shown that he was acting upon an order under which he went upon the tracks where he was injured; (f) that he had no right to rely on the fact of train No. 31 not having gone out upon its schedule time.
Upon oral argument it was declared by counsel for appellee that the complaint is based upon the common-law liability, and not upon the co-employés' liability act so that the question of the order is immaterial as to that feature of the case. There is, as will be seen, no allegation in the complaint that appellee did not know of the danger attending the entry into the switchyard, and it is well settled that the plaintiff in such cases must aver his want of knowledge of the danger. Chicago, etc., Co. v. Barnes, 164 Ind. 143, 73 N. E. 91;Indianapolis, etc., Co. v. Foreman, 162 Ind. 85, 69 N. E. 669, 102 Am. St. Rep. 185;Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319;Cleveland, etc., Co. v. Parker, 154 Ind. 153, 56 N. E. 86;Chicago, etc., Co. v. Glover, 154 Ind. 584, 57 N. E. 244;Consolidated Co. v. Summit, 152 Ind. 297, 53 N. E. 235;Pennsylvania Co. v. Ebaugh, 152 Ind. 531, 53 N. E. 763;Louisville, etc., Co. v. Kemper, 147 Ind. 561, 47 N. E. 214;Potter v. Knox Co., 146 Ind. 114, 44 N. E. 1000;Peerless Stone Co. v. Wray, 143 Ind. 574, 42 N. E. 927;Big Creek Co. v. Wolf, 138 Ind. 496, 38 N. E. 52;Louisville, etc., Co, v. Corps, 124 Ind. 427, 24 N. E. 1046, 8 L. R. A. 636;Louisville Co. v. Sanford, 117 Ind. 265, 19 N. E. 770. And that this averment must be as broad as the averment of knowledge to the defendant, and he must disclose an absence of knowledge of the defects or omissions of which he complains. Louisville, etc., Co. v. Kemper, supra; Chicago, etc., Co. v. Glover, supra; Pennsylvania Co. v. Ebaugh, supra; Peerless, etc., Co. v. Wray, supra; M. Rumley Co. v. Myer, 40 Ind. App. 460, 82 N. E. 97;Baltimore Co. v. Hunsucker, 33 Ind. App. 27, 70 N. E. 556. And that where the specific facts alleged show a knowledge of danger, or the same opportunity for knowledge as the master, these facts will overcome a general allegation of want of knowledge. Louisville, etc., Co. v. Kemper, supra; Peerless, etc., Co. v. Wray, supra; M. Rumley Co. v. Myer, supra; Baltimore Co. v. Hunsucker, supra; Ames v. Lake Shore, etc., Co., 135 Ind. 363, 35 N. E. 117;Myers v. W. C. De Pauw Co., 138 Ind. 590, 38 N. E. 37;Corning, etc., Co. v. Pohlplatz, 29 Ind. App. 250, 64 N. E. 476.
Applying the rule that a pleading is construed most strongly against the pleader, it is impossible to avert the conclusion that it is shown by the complaint that appellee had full knowledge of the condition of the yards, the switching and running of fast trains through them, and of the danger of passing through them, as fully as appellant could have known them, and that if that fact alone is sufficient to render the complaint bad, this complaint is clearly bad, for there is no pretense of an allegation of the lack of such knowledge. It is shown that appellee was in the employ of appellant, and that there was no other way of reaching the assembling place, and that for several days appellee had with others assembled there, hence the condition of the yard was an open and visible one; the dangers which appellee describes were necessarily continuous and apparent, even to casual observations. It is also settled that, where the servant has equal knowledge of a defect with the master, there can be no recovery, unless there be a promise to repair or remedy the defect, or remove the cause of the danger, or some excuse shown which justifies reliance by the servant. Big Creek Co. v. Wolf, 138 Ind. 496, 38 N. E. 52.
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