Evansville And Terre Haute Railroad Co. v. Tohill
| Decision Date | 16 October 1895 |
| Docket Number | 17,208 |
| Parties | Evansville and Terre Haute Railroad Co. v. Tohill, Admx., Etc |
| Court | Indiana Supreme Court |
Reported at: 143 Ind. 49 at 60.
From the Sullivan Circuit Court.
The judgment is reversed, with instructions to the circuit court to sustain the appellant's motion for judgment on the special verdict.
Iglehart & Taylor, for appellant.
Cullop & Kessinger, Townsend & Wilhelm, J. S. Bays and A. D Leach, for appellee.
This was an action in three paragraphs of complaint by the appellee, to recover damages from the appellant, for the alleged negligent killing of Edward D. Tohill, an engineer of appellant, in a collision of two freight trains upon appellant's railway. Each paragraph of complaint alleged that the decedent was the engineer of train No. 20, north bound from Evansville to Terre Haute, and running on the regularly established schedule time for said train; that train No. 19, running south on said railway, was, by direction of the appellant, running one hour and twenty minutes ahead of the schedule time for said train, and that while said two trains were so running, each at the speed of twenty-five miles per hour, and at a point where the track was so obscured by natural objects that a view could not be had in either direction for any considerable distance, said trains collided, and without any fault of said engineer, Tohill, he was killed. The first paragraph charged the appellant to have been negligent in running No. 19 ahead of schedule time and passing a station where, by the schedule, said two trains should have met, and also in failing to notify engineer Tohill of the running of No. 19 out of schedule time. The second paragraph pleads certain rules of the appellant as to the movements and the operating of trains, in leaving and arriving at stations, as to the preference between trains in taking the right of way, and the duties of trains to go upon sidings and clear the main track in time for the arrival of schedule trains, having such preference, at the meeting points established by the schedule. It is alleged that the train dispatcher had control of the movement of all trains and of all employes on such trains; that he directed the movements of the two trains in question, and that in violation of said rules he negligently ordered train No. 19 to run in advance of schedule time to Princeton, beyond Vincennes, the schedule meeting place for said two trains; that when he gave said order he knew, or could by diligence have known, that the obedience of such order would cause said train No. 19 to meet said train No. 20 between Vincennes and Princeton; that Tohill had no notice or knowledge of said order. It is also averred that appellant was negligent in "employing and keeping in its employ in the office of train dispatcher, said Southern, whom the defendant well knew, or could have known, was incompetent and unfit, on account of his negligence and careless manner of running its trains ahead of their schedule time in violation of defendant's rules, to fill said position that it was known by the defendant that said train dispatcher had been for three months last past, before said date, violating the said rules * * in carelessly and negligently running its trains ahead of their schedule time." It was also alleged that the appellant was negligent in running train No. 19 ahead of time without notice to Tohill, as in the first paragraph. The third paragraph is identical with the second, except that it alleges the effect of the appellant's rules, which were set out at full length in the second.
Demurrers to the several paragraphs of complaint were overruled, the appellant answered in general denial, the cause was submitted to a jury, and the trial resulted in a special verdict, upon which the circuit court gave judgment for the appellee over the motion of the appellant for judgment in its favor.
In addition to facts concerning the appellant's corporate existence, the line of its railway, the employment of Tohill, the collision and its results substantially as alleged in the complaint, the special verdict found that by time-table the company classified its trains, as regular and extra, gave all schedule trains numbers, specified all of the stations, the stopping and meeting points of such trains, and the times of their arrival at and departure from stations, and that no train should arrive at or leave a station in advance of its schedule time, if shown; that by rule it was made the duty of all train operatives to run all regular trains according to such schedule time, and it was provided that no person, except by order of the company, should change or modify such rule; that the company had in its employ as train dispatcher one Southern, who had full control of the movement of all trains and of the employes operating such trains, with power to direct when and how all trains should run, to change the running of regular trains to that of extra trains, and to fully represent the company in that department; that No. 20 was running north on regular time and as a regular train; that No. 19, running south, ran to Sullivan as a regular train, and when at said station it was ordered by said train dispatcher to run in advance of time to Princeton; that, pursuant to said order, it left Sullivan ahead of regular schedule time, and thereby became, under said classification of trains, an extra between Sullivan and Princeton. It is found that No. 19 arrived at Vincennes, the place which, if running as a regular train, it should have met No. 20, one hour and fifteen minutes later; that it left Vincennes one hour and twenty minutes ahead of schedule time, and continued its trip to a point eight miles south of that station. It is stated in the tenth finding that the appellant knew, when the order in question was given, that Nos. 19 and 20 must meet between Vincennes and Princeton; that it failed to direct, by said order, where said trains should meet, and wholly failed to give notice to No. 20 that No. 19 was running ahead of time; that said order, without such notice or a direction as to where said trains should meet, was dangerous to operatives. It is, by other findings, stated that the company had a rule that trains of inferior class should take the siding and clear the main track for trains of superior class five minutes, and that no train should leave the station except to meet or pass, at the next station, the train having the right of track, unless it had the full time allowed between stations to make the meeting at the passing point and clear the track for such other trains. By finding numbered twelve, the jury returned that the operatives of No. 19 acted upon said special order to run ahead of time, and disregarded and wholly failed and neglected to observe and act in accordance with said rules as to the operation of said train between Vincennes and Princeton; that between Vincennes and Hazleton, on appellant's road, was a station called Pursell, where there was a side track of sufficient capacity to admit No. 19, and permit No. 20 to pass in safety, but that said operatives wholly failed to accept said opportunity, and continued to a point beyond Pursell, where the collision occurred. It is also found that the train dispatcher could have ascertained that such meeting place was available, but neglected to do so.
By the fifteenth finding, the jury stated that Southern had been the appellant's train dispatcher for one year, having full charge of the running of all trains; that during that time he issued forty orders for schedule trains to run to and depart from stations ahead of their schedule time, "which said trains, under the rules of the company, were not permitted to arrive, or leave stations ahead of their scheduled time, except when ordered to do so by the" said train dispatcher, and that the office of the train dispatcher and that of the president of the company were in one and the same building.
The evidence disclosed, without conflict, as existing rules of the company, the following, not returned by particular finding by the jury: "All extra trains are of inferior class to all regular trains of whatever class." "A train receiving order to run extra * * must keep clear of all regular trains as required by rule." These rules are urged, in connection with those specially found, in support of the motion for a new trial, and as showing that the verdict was contrary to the evidence. The questions presented by assignments of error, and the argument of counsel involve the sufficiency of the several paragraphs of complaint; the sufficiency of the facts found in the special verdict to sustain the judgment against the appellant, and whether the special verdict was not contrary to the evidence.
If the rules proven and not specially stated in the verdict had been found by the...
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