Evansville & R.R. Co. v. Henderson

• Decision Date: 04 April 1893
• Citation: 134 Ind. 636,33 N.E. 1021
• Parties: EVANSVILLE & R. R. CO. v. HENDERSON.
• Court: Indiana Supreme Court

134 Ind. 636

33 N.E. 1021

EVANSVILLE & R. R. CO.

v.HENDERSON.¹

Supreme Court of Indiana.

April 4, 1893.

Appeal from circuit court, Jackson county; S. B. Voyles, Judge.

Action by Tyre S. Henderson against the Evansville & Richmond Railroad Company for personal injuries caused by the derailment of a car of the construction train on which he was employed. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

M. F. Dunn and George G. Dunn, for appellant. Giles, Zarnig & Hottel, for appellee.

COFFEY, C. J.

This was an action by the appellee against the appellant, commenced in the Lawrence circuit court, to recover damages on account of a personal injury. The venue of the cause was changed to the Jackson circuit court, where a trial was had, resulting in a special verdict, upon which the court, over a motion for a new trial, rendered judgment for the appellee. The amended complaint in the cause alleges, among other things, substantially, that the appellee was employed by the appellant on the 2d day of October, 1889, as a laborer to work on its construction train; that at the point where the appellee was injured the appellant had carelessly, negligently, and insufficiently constructed its road and track, in this: that it had negligently failed to put sufficient ballast under the track, but had poorly ballasted the same, and the cross-ties on the track thereon were worn down in the mud and dirt, and that it had carelessly and negligently failed to put down a sufficient number of ties under the rails on said track; that by reason of such defects the road was rendered unsafe for any trains to run over, as the appellant well knew, and that by reason thereof the appellee was exposed to extra hazardous and dangerous risks; that the appellee was young and inexperienced in railroading, and knew nothing of the dangers and hazards thereof, and that he had no knowledge of the defective condition of the appellant's road; that the appellant knew of the appellee's youth and inexperience, yet, knowing said facts, it gave him no warning whatever as to the dangerous condition of its road, or of the extra hazardous and dangerous risks to which he was exposed by reason of such employment; that on the 2d day of October, 1889, while being conveyed on the construction train of the appellant from Indian Springs, in Martin county, to the town of Bedford, in Lawrence county, the cars composing said train, by reason of the defects in the road, above named, were derailed, whereby the appellee, without any negligence on his part, suffered permanent injuries.

Many objections to this complaint are urged by the appellant, as well as many objections and exceptions to the rulings and proceedings in the court below; but, in view of the conclusion we have reached, we deem it unnecessary to notice them in this opinion. Assuming that the complaint states a cause of action, we think the evidence in the cause wholly fails to sustain it. It is disclosed by the evidence in the cause that at the time the appellee was injured, as alleged in his complaint, the appellant's road was in process of construction. It was constructed on what is known as the “half-tie” system. This is the usual mode of constructing railroads in Indiana. Under this system, one half the ties necessary to a completed road are laid down upon the grade, and the rails put down upon them, and spiked. The construction train is then run over the road, in this condition, for the purpose of distributing sufficient ties to complete the road. When the ties are all down, the road is then ballasted and completed. The appellee, knowing the incomplete condition of the appellant's road, took employment on the construction train, and on the morning of the 2d day of October, 1889, boarded such train, and went from Bedford, in Lawrence county, to Indian Springs, in Martin county,-a distance of 18 or 20 miles,-for the purpose of procuring ties. The train consisted of nine flat cars. At Indian Springs the seven cars nearest the engine were fully loaded, and the eighth contained about half the usual load of ties. The rear car being empty, the crew at work with the train, including the appellee, consisting of about 20 men, took passage upon the same on the return trip to Bedford. On such trip, and about one mile from Indian Springs, while the train was running at a speed of 15 or 20 miles an hour, the car upon which the appellee was riding, as well as the car immediately in front of it, was derailed, by means of which the appellee suffered the injury for which he sues. The cause of the accident does not satisfactorily appear by the evidence in the cause. The appellant's road was not opened for the business of carrying either freight or passengers for a period of about five or six months after this accident. The appellee was at the time near 19 years of age. The...