Evansville and Crawfordsville Railroad Company v. Hiatt

• Citation: 17 Ind. 102
• Parties: The Evansville and Crawfordsville Railroad Company v. Hiatt
• Decision Date: 27 November 1861
• Court: Supreme Court of Indiana

17 Ind. 102

The Evansville and Crawfordsville Railroad Company v. Hiatt

Supreme Court of Indiana

November 27, 1861

APPEAL from the Sullivan Circuit Court.

The judgment is reversed, with costs, for want of a sufficient complaint. Cause remanded for further proceedings, with leave to amend.

John P Usher, for the appellant.

J. E McDonald and A. L. Roache, for the appellee.

OPINION

Perkins J.

Hiatt sued The Evansville and Crawfordsville Railroad Company, to recover damages occasioned by an injury he received from the cars on said road, and recovered a judgment for $ 1,200. The company has appealed to this Court. The complaint, in the case, does not aver that the plaintiff was not in fault, but it alleges that he, for the purpose of rescuing his father, jumped upon the railroad track, with full knowledge of the nearness and speed of the train, his father, old and infirm, having also entered upon, and started up the track, immediately in front of the approaching train. This is plain, from the averment that he was met by the train, almost immediately after he entered upon the track.

As there is no conflict in the evidence, touching the material facts, we shall set them out, and express an opinion upon them. On August 29, 1856, in the forenoon, a locomotive and train of hopper-shaped gravel cars were standing on the track of The Evansville and Crawfordsville Railroad, at the depot and water station of Sullivan, in Sullivan county, Indiana, where it had stopped, temporarily, while on its way backing down the road. The train consisted of thirty cars, and was four hundred and twenty feet long. It had passed up, and deposited its load of gravel, that morning, and was on its return to the gravel pit.

About four hundred yards down the road, from the train above mentioned, stood Mr. Riley's mill. Mr. Riley wanted a car that stood upon a switch at the depot, close to the gravel train, and he concluded to take that time to go up and get it. He wanted to load the car, with freight from his mill. A Mr. Gray, and two men, father and son, by the name of Hiatt, were standing about Riley's mill, and he asked them to go up and help him push down the car, and they consented to go. There was a road, other than the railroad, from the mill to the depot, and also a side path, but the four men concluded to go up the railroad track. The gravel train was just starting down the track toward them, as they started up. The whistle was blown, the train was in full view, and they saw it in motion, as they started. The men had three bridges, not planked, but to be walked over on the timbers, to cross, one of them thirty-five feet long. As the men and the cars approached each other, Gray, Riley and Hiatt, the son, as soon as they got across the bridge mentioned, stepped off the track, but Hiatt, the father, did not, but stopped on the bridge. The son, seeing this, hastened back on to the bridge, seized his father, and took him off, but failed to clear the track himself, entirely, and the train struck him, and fractured one of his legs so badly that it had to be amputated.

The train had not got, and had not had time to get, under rapid headway, but was moving at, perhaps, about four miles an hour. The hands in charge of the train knew nothing as or who the men upon the track were, their condition, or what was their business. When they discovered, (a thing rather difficult to do, as a long train was between them and the men,) that all did not go off the track, as a part did, they reversed the engine, applied the brakes, and made all reasonable effort to stop the train. They were guilty of no manner of negligence...