Dean v. Cleveland, C., C. & St. L. Ry. Co.
| Decision Date | 23 February 1917 |
| Docket Number | No. 9223.,9223. |
| Citation | 115 N.E. 92,65 Ind.App. 225 |
| Court | Indiana Appellate Court |
| Parties | DEAN v. CLEVELAND, C., C. & ST. L. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Sullivan County; Wm. H. Bridwell, Judge.
Action by Sarah Dean, administratrix of the estate of William H. Dean, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment on directed verdict for defendant and order overruling motion for new trial, and plaintiff appeals. Reversed, with instructions.A. L. Miller and H. S. Wallace, both of Terre Haute, and O. B. Harris, of Sullivan, for appellant. Hays & Hays, of Sullivan, and Beasley, Douthitt, Crawford & Beasley, of Terre Haute, for appellee.
An action to recover for the death of William H. Dean, alleged to have been caused by appellee's negligence. The complainant proceeds upon the theory that appellee was negligent in operating an engine and cars on a certain side track and switch at the plant of the Vigo Elevator Company near Terre Haute, Ind., where decedent was working when injured. At the close of appellant's evidence appellee moved for a peremptory instruction, which was sustained, and the jury directed to return a verdict for appellee, which was done. Appellant's motion for a new trial challenging the rulings of the trial court in directing the verdict is the sole error assigned.
The buildings and yards of the Vigo Elevator Company are located between appellee's railroad and other railroads and are connected with such railroads by a number of switch tracks. These railroad companies delivered cars into the yards of the elevator company and over separate tracks for the accommodation of each. In delivering the cars into the yards they would simply place them on their particular tracks, and afterwards they were located as desired by the elevator company by a switch engine and switching crew. Cars that were to be unloaded in the main building were brought up to the north end of the unloading track and were placed on the unloading track as directed by the representative of the elevator company having that work in charge. They were usually placed near the north end of the building, and were afterwards drawn into the building by means of a cable operated by the employés of the elevator company. At other times the cars were pushed into the building by the same switch engine used for bringing the cars to the unloading track. There was sufficient room on this track within the main building for two cars and no more. Whether the loaded cars were pulled into the building by the cable or pushed in by the engine, when they were brought in they would shove out of the south side of the building any empty cars which at the time were within the building on the same unloading track. As these empties were not attached to an engine, they would simply roll out of the building only so far as the momentum received from the contact with the incoming cars would send them. When they stopped these empties would sometimes come together, and sometimes they would be left standing with open spaces between them. The switching crew referred to did all their work in the elevator yards, and had nothing to do with transferring cars between the yards and the different railroads. When the switching crew was ready to place the loaded cars brought into the yards they would so notify the elevator company, and they would then place them as directed. The several tracks used by this crew were constructed by appellee for the elevator company, and the switch engine was one of appellee's engines, and the members of the switching crew were in the employ of appellee. About 11 o'clock in the morning of the day of the accident there had been two empty cars standing on the unloading track at the south end of the main building. They were coupled together. One of them was entirely without the building; the other partly so. South of these two cars there were other empties standing on the same track. The yards of the elevator company were spacious, many buildings composing its plant, and all separated by the various switch tracks. Decedent for several weeks before his death had charge of the repair work about the elevator company's plant, and was also employed in installing new machinery, and his work required him to visit the several buildings frequently, and in doing so he was required to and did pass over the various switch tracks and over and between cars standing thereon. When there were openings between the cars it was customary for the workmen generally to pass back and forth over the tracks and between the cars standing thereon, and this fact was known to the members of the switching crew. On the day Dean was killed the switching crew pushed the loaded cars into the building and against the two cars standing there, and when they were set in motion they closed up the space between them and other empties next to them to the south, and caught decedent as he was passing through such open space, and this was done without any notice or warning first being given or without any one guarding the open spaces between such cars.
There seems to be some slight variance in the evidence, but the statement we here have made is a fair abstract of all the evidence bearing upon the question involved.
It is insisted that the court erred in directing...
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