Evans v. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co.

• Decision Date: 15 October 1895
• Docket Number: 17,206
• Court: Indiana Supreme Court
• Parties: Evans v. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company

41 N.E. 537

142 Ind. 264

Evans v. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company

No. 17,206

Supreme Court of Indiana

October 15, 1895

From the Henry Circuit Court.

The judgment is affirmed.

J. M Morris, J. Brown and W. Brown, for appellant.

L. P Newby and J. L. Rupe, for appellee.

OPINION

Howard, C. J.

A demurrer for want of facts was sustained to appellant's complaint.

The pertinent allegations of the complaint are, "That the defendant, by its servants and employes, ran a locomotive and train of freight cars into the town of Ashland, and there stopped and disconnected the locomotive from the train of cars standing upon its railroad track opposite the platform of its depot, and ran said locomotive on ahead, a distance of twenty rods, for the purpose, as the plaintiff supposed, of passing a switch and backing the said locomotive from thence on to a side track for the purpose of gathering some cars and connecting them with its train by bringing them on to the main track and backing them to the said train of cars so left standing upon said main track; that the caboose of said train of cars was the last car in the rear of said train, and that there was in front of said caboose, and connected therewith what is known as a "scale tester," which was a small heavy iron structure placed upon four wheels, no wider than the track of the railroad, with a round iron covering over the top, which said scale tester was made and used for the purpose of running onto scale platforms, and testing the accuracy of the scales; that whilst said defendant's cars were so standing upon said track, the plaintiff had occasion to pass by the caboose, and being attracted by the sight of the scale tester, walked up and placed one hand upon the end of the caboose, and placed his left foot upon the rail in front of the caboose, and in the rear of the scale tester, and stooped over to see under and look at the scale tester, and whilst in this condition the servants and employes of said railroad company, without having run off onto the switch, as they intended to do, carelessly and negligently, and without any warning or signal, ran said locomotive back against the train of cars, so standing upon said track, and butted and pushed them back a distance of one hundred feet; that the plaintiff had on his left foot a heavy boot with a thick sole, and that the wheel of the scale tester ran against his foot, and caught him fast and threw him down, or nearly so, and he caught with his hands, held to some attachment to the caboose car, and held his body up off the railroad track, and that the wheel of the scale tester when it struck his foot, slid upon the iron rail, holding his foot fast to said rail, and slid him in that condition fifty or sixty feet, said train going slowly all of said time; that whilst he was in this condition, some of the bystanders came to his rescue and aided him in holding his body off said railroad track; that whilst he was in this condition, he hallooed and made such efforts as he could to cause the employes of said defendant to stop the continuous backing of said train of cars; that a brakeman belonging to the crew of defendant's servants, so managing said train, saw the plaintiff in said perilous position, and immediately signaled the engineer to stop the train, and took off his hat and swung it, and hallooed at him and notified him of the great...