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

Decision Date08 June 1905
Docket Number5,180
Citation74 N.E. 1003,35 Ind.App. 626
CourtIndiana Appellate Court
PartiesCLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. HAAS, ADMINISTRATOR

From Marion Circuit Court (11,446); Henry Clay Allen, Judge.

Action by Schuyler A. Haas, as administrator of the estate of Thomas O'Brien, deceased, against the Cleveland, Cincinnati Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.

Reversed.

Elliott Elliott & Littleton and John T. Dye, for appellant.

Henry N. Spaan, S. P. Welman and Elias D. Salsbury, for appellee.

OPINION

COMSTOCK, J.

This action was brought by plaintiff, appellee, against defendant, appellant, to recover damages for the death of the plaintiff's intestate on account of the alleged negligence of the defendant in maintaining a bridge claimed to have been too narrow. The plaintiff's intestate was a freight brakeman in the service of the defendant, and the action is based on the alleged common-law liability of the master to his servant. The case went to the jury upon the issue formed by the seventh paragraph of complaint (the other paragraphs having been withdrawn), and answer thereto of general denial. A verdict for $ 3,000 was returned in favor of plaintiff, and judgment rendered thereon.

1. The first specification of error challenges the sufficiency of the complaint. Most of the other alleged errors come under the assignment of error upon the motion for a new trial, and the court's action thereon. The paragraph under consideration alleges that on the 14th day of July, 1901, and for many years prior thereto, said defendant was a railroad corporation owning and operating among other lines of railway one lying between the cities of Peoria, Illinois, and Indianapolis, Indiana; that for many years last past said corporation had operated said line of railway, and especially that portion lying west and east of a certain bridge built over Eagle creek, near the city of Indianapolis; that said bridge was built more than twenty years ago, and at a time when there were in use upon said line of railway small engines; that within the past five years the defendant had been operating over and along said line of railway, and over said bridge, engines much larger in size--as to weight, height and width--than the engines that were used at the time said bridge was built and sometime thereafter; that the use of said large engines over said line of railway makes it more than ordinarily dangerous for trainmen on freight-trains to handle trains running across said bridge, in this, viz.: that said engines, being much wider than the engines for the use of which said bridge was built, makes the space between the engines and the uprights supporting said bridge much smaller, thereby endangering the lives of trainmen whose duties call them to the side of said trains while they are in operation across said bridge; all of which facts were known to the defendant for more than five years before the 14th day of July, 1901, yet it failed to give any warning by any method whatever of said danger to its employes running trains over said bridge; that about three months prior to July 14, 1901, Thomas O'Brien went into the employ of the defendant as a brakeman on freight-trains running on the line of railway above described; that about 3 o'clock on the afternoon of said day he was acting as the head brakeman on a freight-train running east and west over said line of railway; that sometime before said train arrived at the bridge one of the journals on one of the freight-cars became heated, so as to make it necessary for said O'Brien to watch said journal, and not allow it to become overheated; that the effect of allowing a journal to become overheated is to put the train in danger of leaving the track, because of the fact that said journal may become crooked and swell and break down, thereby endangering the safety of defendant's property; that it was the duty of said O'Brien to watch said journal carefully and prevent it from overheating; that the only way he could do that while said train was in motion was to watch said journal from time to time, and, in order to keep a proper watch upon said journal, he placed himself upon the gangway of the engine situated between the engine and tender, and from time to time he leaned out, as it was his duty to do, beyond the line of said engine, and looked back to see what was the then condition of said journal; that when said train approached the bridge it was running at the rate of forty miles an hour, and had about two and one-half miles to run before it reached Mooresfield, its next stopping place, and where the repair shops of the defendant were then located; that just before they reached the bridge O'Brien was watching the journal from the gangway before described, and he, being then and there intent upon his duty of watching the overheated journal, was not aware of the near approach to the bridge, nor did he know at that time that said bridge was more than ordinarily dangerous because of the narrowness compared with the size of the engine upon which he was riding, as before described; that being so ignorant, and having his mind intent upon the duty of watching said journal, he leaned out over the side of said engine in the course of his duty of watching said journal, and while so doing his head and body came in contact with the side of said bridge, and he was instantly killed; that O'Brien was killed because of the negligence of the defendant in maintaining said bridge in the dangerous condition before described, that is, too narrow for the running thereover of engines as large as the one upon which said O'Brien was, said engine being one of the large engines that have come into use upon the road within the last five years; and that the defendant was negligent in not notifying O'Brien of the more than ordinarily dangerous condition of the bridge described, either by word of mouth or by putting up the proper signal or otherwise; that O'Brien did not know the dangerous condition of said bridge, and did not know that it was too narrow; that the defendant did know all of these facts, and had known them for more than five years before the killing of O'Brien.

The first point made by the defendant is that the court erred in overruling its demurrer for want of facts to the seventh paragraph of the complaint. The second, that there was no negligence of the defendant shown to have been the proximate cause of decedent's death. Notwithstanding the able argument made against it, we are of the opinion that the complaint is sufficient to withstand a demurrer.

2. Of the questions growing out of the numerous remaining alleged errors, we deem it necessary only to decide whether appellant was guilty of negligence. In doing this a consideration of the following undisputed facts is required: The bridge in question was fourteen feet one inch wide in the clear. The standard width is fourteen feet. The bridge in question was one inch wider than the standard width of bridges on defendant's road, and on other roads generally. There was a space of at least two feet and two inches between the end of the pilot beam, which was wider than any other part of the engine or train, and the nearest portion of the bridge on either side. There was a space of at least two feet and five inches between the outermost edge of the gangway, where it is claimed the appellee's intestate was, and the nearest part of the bridge. Engines of the same size as that in question, and even larger, had been used on the road and run over the bridge in question for at least eight years before the accident, and, so far as appears, no such accident had happened before at the bridge. Plaintiff's intestate had made the same run, going or coming, almost every day for nearly three months. The injury was received in broad daylight, early in the afternoon. plaintiff's intestate at the time he was injured was standing in the gangway of the engine, leaning out on the north side and looking back toward the rear of the train. No one gave plaintiff's intestate any orders or directions to lean out of the engine. The complaint does not allege that he was directed by any one to stand where he stood, or lean out of the engine. He was knocked off about the middle of the bridge. He had passed one upright before reaching the one by which he was injured. It also appears that the hot box was back of the middle of the train, and one of plaintiff's witnesses, who was the only witness who testified as to the duty of a head brakeman as distinguished from that of the rear brakeman, testified that if the hot box is near the head or front end of the train the head brakeman looks after it, but if it is near the rear end, the rear brakeman looks after it from the rear end of the train. If defendant was guilty of negligence in maintaining the bridge, it was because of its insufficient width. The question therefore is, what should have been the width of such a structure? Naturally its width should have reference to the use for which it was intended.

In Illick v. Flint, etc., R. Co. (1888), 67 Mich. 632, 35 N.W. 708, it is shown that the standard width is fourteen feet, and the bridge in question was only thirteen feet and four inches wide, yet it was held that the company was not negligent in so maintaining it. In the opinion the negligence of the plaintiff's intestate is held by Sherwood and Champlain, JJ., to preclude a recovery, Morse, J., reserving his opinion; but all concur in holding that the negligence of the defendant was not shown by the evidence.

In Sheeler's Administrator v. Chesapeake, etc R. Co. (1885), 81 Va. 188, 59 Am. Rep. 654, the sides of the bridge were only thirteen and one-half inches from passing...

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