Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Powers

• Decision Date: 02 July 1909
• Docket Number: 21,319
• Citation: 88 N.E. 1073,173 Ind. 105
• Parties: Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Powers
• Court: Indiana Supreme Court

88 N.E. 1073

173 Ind. 105

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

No. 21,319

Supreme Court of Indiana

July 2, 1909

Rehearing Denied October 29, 1909, Reported at: 173 Ind. 105 at 125.

From Decatur Circuit Court; Marshall Hacker, Judge.

Action by George Powers against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 6,500, defendant appeals.

Reversed.

Thomas L. Stitt, Carey E. Cowgill, Leonard J. Hackney and Frank L Littleton, for appellant.

J. K Ewing and Frank Hamilton, for appellee.

OPINION

Myers, J.

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 defendant, at the city of Greensburg, has a large yard, containing about sixty acres of ground, covered with main tracks, side-tracks, switches and spurs, amounting in all to seven miles of track, over which tracks all incoming and outgoing trains pass and repass; that such yards were in charge of a yardmaster, and that repair shops and a roundhouse are situated in said yard; that defendant maintained in said yard a network of interlocking switches, manipulated by hand and by electricity, and that the switching of cars, and the transferring of trains from Louisville, Cincinnati, Indianapolis, St. Louis, Chicago and intermediate points, as well as the passage of through trains through said yard, rendered it extremely dangerous and extra hazardous for pedestrians or workmen to enter said yard, or upon the tracks therein, all of which was well known to said defendant; that plaintiff, a laborer in the employ of defendant, was working under the immediate command of a foreman in charge of about twenty men, all of whom were subject to his directions and command; that for several days prior to February 19 the plaintiff and said crew were ordered by said foreman to report for duty at the office, situated in said yard, not later than 6 o'clock a. m. each day; that on February 19, 1907, at the hour of 6 o'clock a. m., deep darkness and a dense fog hung over the earth; that plaintiff at such hour, in strict obedience to the command of defendant, made by its said foreman, proceeded to said office, in compliance with such order, which order plaintiff was bound to obey; that there was no way to reach such office without passing over such tracks through such yard; that defendant on said date, and for a long time prior thereto, permitted its said employes to pass and repass over said tracks in said yard, in going to and returning from said 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 yard, an ordinance of the city of Greensburg limiting the speed of trains to twelve miles an hour; that at the same time a regular schedule 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, Kentucky; that plaintiff was familiar with the time of the departure of train No. 31, and knew that said train usually left Greensburg for the south via the south main track; that on the morning of February 19, 1907, between the hours of 5 o'clock a. m. and 6 o'clock a. m., this plaintiff, while using all possible care to avoid danger, caused by the darkness and dense fog which hung over such yard, and while carefully proceeding to obey the orders of his foreman, to whose orders he was bound to conform, and while trying to avoid an east-bound train then approaching, stepped from 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 defendant carelessly, negligently, recklessly, unlawfully, 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, twenty-five miles per hour, over and upon a track not usually traveled by said train, and about one hour out of schedule time, without sounding the whistle or ringing the bell, and, without giving any warning or notice to plaintiff; that said train ran into and struck the plaintiff from the rear, severely injuring him, while he was watching an incoming train from the opposite direction on the immediately adjoining track, to wit, the north main track; that the plaintiff's injuries were caused by the negligence of said defendant in not furnishing plaintiff with a safe and suitable place in which to work, in putting him in a dangerous place, and in not using care commensurate with the danger to which it exposed him, by running said train No. 31 at an unlawful rate of speed, in violation of a city ordinance, on the wrong track, out of schedule time, recklessly in a place of danger, through deep darkness and 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 following grounds: (1) That there is no allegation that appellee was without knowledge of the danger, and that he did not assume the risk; (2) that it is not shown that appellant owed appellee any duty which it violated, or any duty to run its train on schedule time, or within the rate of speed prescribed by ordinance, nor is it shown that the increased rate of speed was the proximate cause of the injury, nor that the company owed appellee any duty, or violated any duty, as to giving signals, nor that he would have heeded the signals if they had been given, nor that any of the acts alleged to have been negligent had anything to do, in relation to cause and effect, with appellee's injuries; (3) that it 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; (4) that it shows appellee to have been negligent in selecting the place he did; (5) that it does not show that appellee was acting upon an order under which he went upon the tracks where he was injured; (6) that appellee had no right to rely on the departure of train No. 31 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 employers' 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 his entry into the switch yard, and it is well settled that the plaintiff must aver his want of knowledge of the danger. Chicago, etc., R. Co. v. Barnes (1905), 164 Ind. 143, 73 N.E. 91; Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 102 Am. St. 185, 69 N.E. 669; Davis Coal Co. v. Polland (1902), 158 Ind. 607, 62 N.E. 492; Cleveland, etc., R. Co. v. Parker (1900), 154 Ind. 153, 56 N.E. 86; Chicago, etc., R. Co. v. Glover (1900), 154 Ind. 584, 57 N.E. 244; Consolidated Stone Co. v. Summit (1899), 152 Ind. 297, 53 N.E. 235; Pennsylvania Co. v. Ebaugh (1899), 152 Ind. 531, 53 N.E. 763; Louisville, etc., R. Co. v. Kemper (1897), 147 Ind. 561, 47 N.E. 214; Potter v. Knox County Lumber Co. (1896), 146 Ind. 114, 44 N.E. 1000; Peerless Stone Co. v. Wray (1896), 143 Ind. 574, 42 N.E. 927; Big Creek Stone Co. v. Wolf (1894), 138 Ind. 496, 38 N.E. 52; Louisville, etc., R. Co. v. Corps (1890), 124 Ind. 427, 8 L.R.A. 636, 24 N.E. 1046; Louisville, etc., R. Co. v. Sandford (1889), 117 Ind. 265, 19 N.E. 770.

This averment must be as broad as the averment of defendant's knowledge thereof.

The plaintiff must disclose an absence of knowledge of the defects or omissions of which he complains. Louisville, etc., R. Co. v. Kemper, supra; Chicago, etc., R. Co. v. Glover, supra; Pennsylvania Co. v. Ebaugh, supra; Peerless Stone Co. v. Wray, supra; M. Rumely Co. v. Myer (1907), 40 Ind.App. 460, 82 N.E. 97; Baltimore, etc., R. Co. v. Hunsucker (1904), 33 Ind.App. 27, 70 N.E. 556.

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., R. Co. v. Kemper, supra; Peerless Stone Co. v. Wray, supra; M. Rumely Co. v. Myer, supra; Baltimore, etc., R. Co. v. Hunsucker, supra; Ames v. Lake Shore, etc., R. Co. (1893), 135 Ind. 363, 35 N.E. 117; Myers v. W. C. DePauw Co. (1894), 138 Ind. 590; Corning Steel Co. v. Pohlplatz (1902), 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 as full knowledge as appellant of the condition of the yards, the switching and running of fast trains through them, and of the danger of passing through them, and if that fact alone is sufficient to render a 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; that for several days appellee had with others assembled there, hence the condition of the yard was open and visible, and the dangers which appellee describes were necessarily continuous and apparent, even to casual observation. It is also settled that where the servant has equal...