Dierickx v. Davis

• Decision Date: 22 December 1922
• Docket Number: 11,312
• Citation: 137 N.E. 685,80 Ind.App. 71
• Parties: DIERICKX v. DAVIS, AGENT
• Court: Indiana Appellate Court

137 N.E. 685

80 Ind.App. 71

DIERICKX v. DAVIS, AGENT

No. 11,312

Court of Appeals of Indiana

December 22, 1922

Rehearing denied April April 5, 1923.

Transfer denied June 5, 1923. [Copyrighted Material Omitted]

From Lake Superior Court; Walter T. Hardy, Judge.

Action by Joe F. Dierickx against Walker D. Hines, Director General of Railroads (for whom John C. Davis, Agent, was substituted) and the Michigan Central Railway Company. From a judgment for named defendant, the plaintiff appeals.

This action was instituted by the appellant against the appellee Walker D. Hines, Director General of Railroads, and the Michigan Central Railway Company, to recover damages for personal injuries. The appellant was an employe of the Carl Hagenbeck and Great Wallace Show Company, and at the time he received his injuries he was riding on the circus train. The circus train stopped on the track near Gary, Indiana, and another train, known as a "troop train," ran into the circus train, causing a rear-end collision. This litigation arises out of that incident.

The amended complaint on which the cause went to trial consisted of three paragraphs. The theory of liability on which the first paragraph rests must be determined from the following averments therein contained:

"That a switchman, being an employe of the said defendants on the train on which plaintiff was riding, caused the track on which said circus train stood to be protected by fuses and signal lights; yet the said defendants, through their servants, not regarding their duty in that behalf, then and there did so willfully, wantonly, recklessly, and negligently run and propel another train * * * over the said track and behind the train on which the plaintiff was riding, without notice or warning, and without giving any heed to or paying any attention to said fuses and said lights, and to the warning of the block signal system in use on said track, or the train on which the plaintiff was then and there riding so that said last mentioned train ran into, crashed into, hit, and struck the train on which the plaintiff was riding, demolished many of the cars on said train, including the car on which the plaintiff was riding, and then and there wrecking and demolishing the car on which the plaintiff was riding; that said wreckage of said car and said collision then and there inflicted upon the plaintiff the following injuries: that by reason of said concussion and on account of being hit by portions of said car when the same was demolished by reason of the defendant's negligence, the plaintiff's eye was seriously and permanently injured in this * * *, that since the plaintiff was injured through the negligence of the defendants, as hereinbefore alleged, he has been and will hereafter be permanently disabled * * *. And the plaintiff further avers that said accident was not caused or brought about by any negligence or want of care on his part, but the same was caused wholly by the willful, wanton, reckless, and negligent conduct of the servants of the defendant as above set forth."

In the second paragraph the theory of liability is averred in the identical language of the first.

The third paragraph sets forth the theory of liability in the following language: "That the plaintiff at all times hereinafter mentioned was in the exercise of due care and diligence for his own safety; that it thereupon became and was the duty of the defendant with respect to the plaintiff to operate both of said trains of cars and to transport the same with due care and caution and to maintain a lookout for cautionary and danger signals which might be given by the automatic block system then installed on said road between the points above mentioned, so as not to injure the plaintiff, but the plaintiff avers that the defendants nevertheless did not operate or transport such trains of cars with care and caution or maintain a lookout for such signals or for any other purpose, but willfully, deliberately and intentionally, and willfully and intentionally disregarding their duty in that behalf, respecting the said plaintiff, set in motion and propelled forward the above mentioned special train at a high rate of speed without keeping and maintaining any lookout for such warning signals, or for the purpose of securing the safety of such trains of cars as might be upon the track, and in particular of said circus train and the persons thereon.

"That the plaintiff then and there through its employes stopped the said circus train upon its tracks at or near the Ivanhoe Tower near Gary, Lake county, Indiana; that cautionary and danger signals were at such time set by and under said automatic block system at such a distance in the rear of such circus train as to be clearly observable to any lookout on said special train at a distance sufficient to stop such special train without colliding with such circus train and that divers other danger signals were displayed and were clearly visible to a lookout on said special train, but that the defendants notwithstanding such opportunity to observe such signals and so bring said special train to a stop, deliberately and willfully drove and propelled said special train into the rear of the above named circus train so that the said circus train was wrecked, destroyed and burned; and then and there killed many persons on said train, then and there wrecking and demolishing the car on which the plaintiff was riding; that said wreckage of said car and said collision then and there inflicted upon the plaintiff the following injuries."

An answer was filed by each defendant, and thereafter the action was dismissed as to the railroad company. The cause proceeded to trial, and at the conclusion of the plaintiff's evidence the court directed a verdict for the defendant.

Insofar as necessary to an understanding of the question to be decided the plaintiff's evidence is as follows:

The Michigan Central Railway Company is the owner of a railroad extending from Toledo, Ohio, to Hammond, Indiana, through the southern portion of the State of Michigan. The Director General of Railroads was in possession of, and operated and controlled, the railroad on June 22, 1918. The plaintiff was an employe of the Carl Hagenbeck and Great Wallace Show Company, as a performer. The show company owned flat cars, stock cars, box cars, coaches, advertising cars, animals, vehicles and circus paraphernalia. The show company had also certain agents and employes to be carried from place to place, some of them on the circus train, others on regular trains. The circus train consisted of a total of forty-nine cars.

The show company entered into an agreement with the railway company, in writing, concerning the movement of the circus train and the transportation of certain of its agents and employes on regular trains. Thereupon the railway company filed the agreement with the Interstate Commerce Commission together with a document which it denominated a tariff. The "tariff" and the agreement were introduced in evidence as one exhibit. The "tariff" is merely explanatory of the contract.

It is unnecessary to set out the agreement in full. Among other things, it stipulates that the railway company will furnish the use of its railroad and necessary side tracks, the necessary conductors, engineers and other trainmen, and sufficient motive power to perform the switching and placing of cars for loading and unloading at its stations therein named, and to move the show train on the dates and from place to place as therein specified; that the railway company shall receive the empty equipment of the show company from a connecting line at Toledo, Ohio, on the morning of June 13, 1918, and shall move the train about midnight of that day, after exhibition at Toledo, for Detroit, Michigan, and thereafter the train was to be moved after each successive exhibition to the next place of exhibition; that, when the train shall have finally arrived at Franklin Park, Illinois, it shall be delivered to the C. M. and St. Paul Railway Company; that the railway company shall haul the advertising cars and necessary employes therein on such of its regular trains as may be most convenient to the railway company; that in consideration of the use of the road, motive power, servants and facilities, and the transportation of the advertising cars and employes therein on regular trains, the show company shall pay $ 2,420.68. The contract also contains the following:

"It is agreed that this contract is not made with the railroad company as a carrier, either common or special, of the said persons or property or any thereof * * * but as a hirer to the party of the second part of the motive power and of men to operate the same, and of the right to use the road and tracks of the said railroad company, to the extent necessary in the premises; and that the conductors, engineers, trainmen and other employes furnished by the railroad company hereunder shall, as between the parties hereto, while engaged in such employment, be deemed to be the servants of the party of the second part; and that the railroad company shall not be liable to the party of the second part, nor to any person or persons, for any injury or damage which may happen to the persons, cars or property to be transported hereunder, which may be caused by defects in the railroad or tracks or by unsuitableness thereof for such transportation, or by the negligence of said conductors, engineers, trainmen or other servants, or any or either of them, or arising from any cause whatever."

Pursuant to the terms of the contract, the circus train was moved from place to place over the railway company's tracks. On June 21, 1918, the show company exhibited at Michigan City Indiana, and after the evening...