Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Wolf

• Decision Date: 24 June 1920
• Docket Number: 23,532
• Parties: Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Wolf, Administrator
• Court: Indiana Supreme Court

128 N.E. 38

189 Ind. 585

Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Wolf, Administrator

No. 23,532

Supreme Court of Indiana

June 24, 1920

Rehearing Denied November 9, 1920, Reported at: 189 Ind. 585 at 595. Petition for Change of Mandate Overruled November 9 1920.

From Bartholomew Circuit Court; John W. Donaker, Special Judge.

Action by Fred Wolf, administrator of the estate of Burney Wolf deceased, against the Cleveland, Cincinnati, Chicago and St Louis Railroad Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1394 Burns 1914, Acts 1901 p. 565.)

Reversed.

Carter & Morrison and Baker & Richman, for appellant.

Hugh D. Wickens, John E. Osborn, Frank Hamilton and James F. Cox, for appellee.

Willoughby J. Myers, C. J., not participating.

OPINION

Willoughby, J.

This was an action by appellee, as administrator of the estate of Burney Wolf, deceased, to recover damages for the death of his decedent, alleged to have been caused by negligence on the part of appellant. The complaint was in four paragraphs, second, third, fourth, and fifth. There was a motion to make the third paragraph more specific, which was overruled, and a demurrer for want of facts was filed to each paragraph, and each demurrer was overruled. A general denial was filed and the issue tried by a jury that returned a verdict for the plaintiff in the sum of $ 2,000. Appellant made a motion for judgment on the answers to interrogatories, which was overruled. A motion for a new trial was also overruled, and judgment rendered on the verdict, from which judgment appellant appeals and assigns as error: (1) Overruling appellant's demurrer to each paragraph of the complaint. (2) Overruling its motion to make the third paragraph of complaint more specific. (3) Overruling its motion for judgment on the interrogatories notwithstanding the general verdict, and overruling its motion for a new trial.

The complaint contains four paragraphs which are similar in their allegations and show in substance the following facts: That appellant is a corporation organized and incorporated under the laws of Indiana and Ohio, and is engaged in the operation of a railroad through certain counties in each of said states; that decedent was employed by appellant as a brakeman on said railroad, and, in the course of his employment, was required to couple and uncouple cars; that on May 24, 1905, appellant operated a certain freight train over its said road in charge of a conductor, who had the control and management of said train and the employes thereon, including decedent, whose superior he was; that on said day, at Valley Junction, Ohio, decedent was directed by said conductor to couple a car to the train on which he was employed; that said car was equipped with a coupling device so arranged that, when the same was in proper condition and repair, the car could be coupled to a train by turning a handle which was connected with, and raised and lowered the coupling pin, thus making it unnecessary for the employe to place himself between the cars; that appellant had negligently permitted said coupling device to become defective and choked and blocked with sand, so that the connecting rod would not operate and raise the coupling pin, and there was no other way or means of raising the pin and making the coupling than for decedent to step between the cars and raise the pin with his hand; that decedent did, in fact, step between said cars and raised the coupling pin; that as he attempted to step back from between the cars his foot caught in a guard rail on the track and he was unable to release it; that while decedent was in this position the conductor who was in charge of the train carelessly and negligently directed the engineer to start said train, with the result that said train did start, and ran over decedent, to his resulting injury and death; that, at the time said signal and direction to start said engine and cars was given by said conductor, he was within six feet of and was looking directly at decedent, and by the exercise of care could have known and did know that decedent was between said cars and in a place of danger and liable to suffer injury by the movement of said cars; that it was the duty of said conductor not to order said cars to be moved until decedent was out from between said cars and out of said place of danger. Certain statutes alleged to have been in force on the day in question as a part of the law of Ohio are pleaded in and as a part of the complaint, but need not be here referred to in detail. One of such statutes made it unlawful for a railroad 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," while another, in its effect, provided that appellant's said conductor, at the time and in the work in which they were engaged, was the superior and not a fellow servant of decedent.

In support of his demurrer appellant insists that each paragraph of said complaint is insufficient on account of failing to negative assumption of risk which resulted in his injury, and also because it is not specifically alleged that appellant had knowledge of the defective machinery or appliances on its said car, and also that it is not alleged that the conductor knew, when he signaled the engineer to move the cars, that the decedent's foot was caught in the rails.

In view of the fact that the actual injury is alleged to have resulted from the negligence of the conductor, operating independently, and after decedent was in a position of danger, the complaint must be held sufficient as against the objections urged, if this element of negligence is well pleaded.

In determining these questions it must be borne in mind that the law of Ohio is to control except in matters of procedure which must be controlled by the law of this state. Matters relating to the procedure in a case enforcing a right of action, such as admissibility or nonadmissibility of evidence, and upon whom the burden of proof shall rest in establishing certain issues, etc., are to be governed by the lex fori and not by the lex loci. Chicago, etc., R. Co. v. Vandenberg (1905), 164 Ind. 470, 489, 73 N.E. 990.

Each paragraph of the complaint alleges that the injury which decedent suffered was caused by the negligence of the conductor operating independently and after decedent was in a position of danger. The relation of the parties was fixed by the law of Ohio, and under that law the conductor was not a fellow servant of decedent, but a superior, or vice principal, and under the facts alleged the risk which resulted from his affirmative and unforeseen act of negligence was not assumed by decedent. Nall, Admx., v. Louisville, etc., R. Co. (1891), 129 Ind. 260, 28 N.E. 183, 611; Pittsburgh, etc., R. Co. v. Nicholas (1906), 165 Ind. 679, 76 N.E. 522; Hammond v. Kingan & Co. (1913), 53 Ind.App. 252, 101 N.E. 385. The several paragraphs of complaint were sufficient to withstand a demurrer.

Overruling the motion to make the third paragraph more specific was not reversible error. To constitute reversible error, the overruling of a motion to make more specific must be shown affirmatively to have injured ap...