Cleveland, Cincinnati, Chicago And St. Louis Railway Co. v. Gossett

• Decision Date: 10 March 1909
• Docket Number: 21,133
• Citation: 87 N.E. 723,172 Ind. 525
• Parties: Cleveland, Cincinnati, Chicago and St. Louis Railway Company et al. v. Gossett, Administratrix
• Court: Indiana Supreme Court

87 N.E. 723

172 Ind. 525

Cleveland, Cincinnati, Chicago and St. Louis Railway Company et al. v. Gossett, Administratrix

No. 21,133

Supreme Court of Indiana

March 10, 1909

Rehearing Denied June 23, 1909. [Copyrighted Material Omitted]

From Superior Court of Marion County (70,806); Lawson M. Harvey Judge pro tem.

Action by Hattie Gossett, as administratrix of the estate of Robert A. Gossett, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, and another. From a judgment on a verdict for plaintiff for $ 8,875, defendant appeals.

Affirmed.

Baker & Daniels, Leonard J. Hackney, Frank L. Littleton and John J. Kelly, for appellants.

Willard Robertson and Harding & Hovey, for appellee.

OPINION

Hadley, J.

Appellee 's decedent, a brakeman on a freight-train of the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, and hereinafter designated as the Big Four, was killed by falling between cars while the train was being operated over a portion of the road of the Indianapolis Union Railway Company, hereinafter designated as the Belt road, by the alleged negligence of both of said appellants.

The material facts set out in the first paragraph of the complaint are as follows: The Big Four in operating one of its lines from Brightwood to the city of St. Louis, Missouri, uses a part of the tracks and equipment of the Belt road, and in running a Big Four freight-train over the Belt road the employes in charge of the Belt road, and those in charge of said train, in handling and in directing the same, were in the common service of both defendants. The plaintiff's decedent, Robert Gossett, was a brakeman on said Big Four freight-train which left Brightwood for St. Louis, with orders to stop at Norwood to take on additional cars. William Cates was the conductor, and Thomas Cain the engineer, in charge of the engine. The conductor was in control of said train, and had authority to give orders to said Gossett, as a brakeman thereon, and did order him to go on top of the train, near to the locomotive, while the train was in motion, and near to the point in said Belt road where the same is crossed by the Cincinnati division of the Big Four, in the vicinity of Norwood. The latter place is connected with the Belt road tracks by a cross-over track. Near said cross-over and the crossing of the Belt road tracks by the Big Four, as aforesaid, the Belt road company maintains a signal, switches and a side-track in charge of its own employe as signalman and switchman, and it was the duty of said employe to signal trains running on said tracks at that point, and to set and manage the switches and tracks so as to keep trains from colliding with each other. Near the signal was a passing track on the north side, and connected with the track occupied by said freight-train. Said freight-train was in all things subject to said signalman's guidance at that point, and he had been informed by the defendants of the orders of said freight-train. When the train approached the signal, the latter was so placed by the signalman as to signify to the engineer that he should bring the train to a stop. West of the signal, the track upon which the freight-train was running was obstructed by another train, which fact was known to the decedent. It was defendants' duty, and all persons in charge of the train, to bring it to a full stop before it reached the signal, and before it was run upon any different track, in accordance with a published rule of the defendants, as follows:

"If necessary to change any route for which the signals have been cleared for an approaching train, or engine, switches must not be changed or signals cleared for any conflicting route until the train or engine for which the signals were first cleared has stopped."

Upon the display of said stop signal, engineer Cain was in the act of stopping the train, and the decedent then believed, and had a right to believe, that the train was about to be stopped. It was the duty of the signalman and the engineer to stop the train, in compliance with said rule; but the complaint alleges that, "disregarding their said duties, they did not stop said train, nor attempt to do so, but negligently, and in violation of said rule, caused the same suddenly to be started with great force, without signal or warning to plaintiff's decedent, who had no knowledge, or means of knowing, that same would be done. And said signalman, knowing that said train should be stopped, as herein averred, and having given the signal to stop, and in violation of said rule and without exercising due care, negligently, and as said train was nearing said signal, manipulated the same and changed and cleared the signal so as to signal that said train might go forward, and negligently and in violation of said rule manipulated and changed said switch tracks so as to guide said train into said side-track to the north and parallel with the track upon which said train was running, as aforesaid. And said engineer in charge of said locomotive engine, having said train orders, and full knowledge of same, and knowledge of said rules governing him in the management of said train, and well knowing that he should not run upon said switch, nor change the route over which his said train orders directed him, until he had stopped said train, and was fully informed of a change in his orders, and the reasons therefor, negligently, on receiving said signal of the signalman, started his engine anew with great force, without bringing same to a stop, or attempting to do so, and ran said train on said side-track."

It is further averred that, when the train was started anew for the purpose of running into said side-track, the decedent was on top of the train, where he was ordered by his conductor to go, and, while in the exercise of due care, the negligent acts of defendants' servants--the signalman and the engineer, aforesaid--caused the decedent to be jerked and thrown between the cars and killed.

The defendants separately demurred to each paragraph of the complaint, which being overruled, the issues were joined by the general denial.

There was a verdict and judgment for the plaintiff against both defendants.

The first question presented is the sufficiency of the first paragraph of the complaint.

The Big Four presents two objections to this paragraph: (1) that it fails to show the breach of a duty owing by the defendants to the decedent; (2) that it fails to show that the cause of injury was not one of the risks assumed by an acceptance of the employment. It is clear that the liability of the defendants can only be affirmed upon the theory that both a violated duty and a nonassumption of the risk are shown. City of Indianapolis v. Emmelman (1886), 108 Ind. 530, 532, 9 N.E. 155; Cleveland, etc., R. Co. v. Parker (1900), 154 Ind. 153, 56 N.E. 86.

The theory of the first paragraph is that the decedent lost his life by the negligent handling of the train on which he was employed, by the engineer's failing to bring the train to a stop before reaching a stop signal, and by the negligence of the Belt road signalman, in charge of the semaphore, in changing the stop signal to a proceed signal before the train had stopped, and by the further negligence of said engineer in suddenly and without any warning to the deceased that he was about to do so, increasing the speed of the train by an unexpected and violent jerk, which threw the decedent off the train and between the moving cars, all in violation of clause four of section one of the employers' liability act (Acts 1893, p. 294, § 8017 Burns 1908), and of rule seventy-nine of both defendants.

It is the duty of the master to protect his servant against the master's own negligence, and against all unusual and unexpected perils of the employment known to the master and unknown to the servant, and which the latter might not learn by the exercise of reasonable care. Pennsylvania Co. v. Ebaugh (1899), 152 Ind. 531, 534, 53 N.E. 763; Indiana, etc., R. Co. v. Bundy (1899), 152 Ind. 590, 596, 53 N.E. 175.

It is clearly charged in the first paragraph that the accident happened by the negligence of the employe of the Belt road in charge of a signal, and by the negligence of the engineer in charge of the engine drawing the train, without any fault or negligence on the part of the decedent, and that the decedent and said employes were fellow servants engaged in the same common service.

By clause four of § 8017, supra, it is made a railroad company's duty to answer to its employe who has been injured, without the latter's fault, by the negligence of a co-employe in charge of a switch yard, a signal or a locomotive engine. This duty is defined and imposed by the legislature, and cannot be waived, assumed or escaped. Davis Coal Co. v. Polland (1902), 158 Ind. 607, 92 Am. St. 319, 62 N.E. 492; Bessler v. Laughlin (1907), 168 Ind. 38, 79 N.E. 1033; Island Coal Co. v. Swaggerty (1903), 159 Ind. 664, 62 N.E. 1103. A railroad brakeman, being himself in the observance of due care and diligence, under § 8017, supra, has the right to presume that fellow employes in charge of a signal, or of a locomotive engine attached to his train, will not be guilty of negligence in manipulating such railroad appliances. He will not be held to have assumed a risk which the statute requires the master to assume. Diamond Block Coal Co. v. Cuthbertson (1906), 166 Ind. 290, 76 N.E. 1060.

The first paragraph alleges that the Belt road's employe in charge of a signal negligently changed it from a "stop" to a "proceed" order, before the approaching train had stopped, and that the train was at once, by the engineer in charge, negligently speeded forward, with a sudden and violent jerk, without stopping...