Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Bergschicker
| Citation | 69 N.E. 1000,162 Ind. 108 |
| Decision Date | 03 February 1904 |
| Docket Number | 20,257 |
| Court | Supreme Court of Indiana |
| Parties | Cleveland, Cincinnati, Chicago & St. Louis Railway Company v. Bergschicker |
From Henry Circuit Court; W. O. Barnard, Judge.
Action by John W. Bergschicker against the Cleveland, Cincinnati Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Reversed.
J. T Dye, L. J. Hackney and M. E. Forkner, for appellant.
Theodore Shockney, J. S. Engle, F. S. Caldwell and W. G. Parry, for appellee.
Appellee, who was a locomotive fireman, brought this action to recover for injuries sustained in having his legs crushed between the roof of the cab of a locomotive and a steel apron which was being used to guide coal from a coal chute into the tender of said locomotive. The injury occurred on the 19th day of December, 1898. There was a verdict and judgment for appellee.
The first question in the case relates to the statute of limitations. The action was instituted on the 25th of January, 1900. There were originally two paragraphs of complaint. A demurrer was sustained to the first of said paragraphs. On the 15th day of January, 1901, and while said second paragraph of complaint was still pending, appellee filed an additional paragraph of complaint. On the 20th day of May, 1901, while the pleadings were in the situation indicated, appellee filed fourth and fifth paragraphs of complaint in the action. On the conclusion of the hearing of the evidence, appellee dismissed the second, third, and fifth paragraphs of his complaint.
Said second paragraph, which was filed within the period of time required by law, was founded on the employers' liability act, and charged appellant's engineer with an affirmative act of negligence in applying the steam and causing the locomotive to back. The fourth paragraph, on which the verdict and judgment of appellee rests, charges that there were negligent acts of omission on the part of the engineer in the manner of adjusting the machinery of said locomotive, whereby the steam escaped into the steam-chests and caused said locomotive to back.
The statute of limitations has not run against appellee. The cause of action throughout has been the same. Jeffersonville, etc., R. Co. v. Hendricks, 41 Ind. 48; Chicago, etc., R. Co. v. Bills, 118 Ind. 221, 20 N.E. 775; Ohio, etc., R. Co. v. Stein, 140 Ind. 61, 39 N.E. 246; Shirk v. Coyle, 2 Ind.App. 354, 27 N.E. 638. It is not material that the second paragraph was subsequently dismissed. There has been throughout but one action, and the character of the demand has remained the same.
The evidence shows that the accident occurred in the night-time. The locomotive was headed west, and had been stationed opposite the coaling station at Union City, on the main track, to take coal. After arranging the apron, appellee pulled the chain which unlatched the gate to the coal chute, and seated himself upon the roof of the cab, with his legs hanging over the back of it, while the coal ran over and along the apron into the tender. After about one ton of coal had run out, the locomotive moved back, injuring appellee as before stated. The theory of appellee was that the throttle leaked or was not closed tightly, and, further, that ordinary care in the circumstances required, in addition to closing the throttle, that the reverse lever should have been put on the center, the cylinder-cocks opened and the air-brakes applied. Just what was done, and what the engineer should have done, in the exercise of ordinary care in the circumstances, were questions of fact that formed a considerable part of the controversy before the jury.
Over the objection and exception of appellant, appellee, after the proper introductory evidence, read to the jury the following rule, found in appellant's book of rules under a subdivision entitled "Enginemen:" At the proper time appellant tendered the following instruction, which was refused by the court: An exception was duly reserved to the refusal to give this instruction, and this ruling, as well as the ruling admitting the rule in evidence, were assigned as grounds for a new trial. It is clear that it was the duty of the trial court in this case, upon application, to construe the rule, and if it appeared on its face to be irrelevant, the court should have refused to permit it to go in evidence.
The first sentence of the rule was not applicable to the case on trial, but it furnishes a context of some importance in determining the meaning of the next provision. That provision has no application except as a locomotive is "placed upon a siding, or elsewhere, to stand." Considering that it purports to be a rule that admits of no exception as to cases coming within its terms, and that all of these precautions would in many circumstances be wholly unnecessary if the locomotive were under the direct and immediate charge of the engineer, it appears to us that appellant's view as announced in the instruction tendered, is correct. Moreover, we think that the rule in question had no application to a locomotive which the engineer had brought to a temporary stop upon a main track. The words "or elsewhere" following the word "siding" are within the ejusdem generis doctrine. In the construction of statutes, contracts, and other instruments of writing, the rule is that general words following the mention of a particular person or thing are ordinarily to be construed as ejusdem generis. Miller v. State, 121 Ind. 294, 23 N.E. 94; Nichols v....
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Cleveland, C., C. & St. L. Ry. Co. v. Bergschicker
... ... Bergschicker against the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company. From a judgment for plaintiff, ... ...