Grand Trunk Western Railway Company v. Poole
| Decision Date | 29 November 1910 |
| Docket Number | 21,508 |
| Parties | Grand Trunk Western Railway Company v. Poole |
| Court | Indiana Supreme Court |
Rehearing Denied May 18, 1911.
From Laporte Circuit Court; John C. Richter, Judge.
Action by David N. Poole against the Grand Trunk Western Railway Company. From a judgment on a verdict for plaintiff for $ 11,500, defendant appeals.
Affirmed.
Anderson Parker & Crabill, S. J. Crumpacker and Kretzinger, Rooney & Kretzinger, for appellant.
Slick & Slick and Travis & Irwin, for appellee.
Appellee recovered a judgment for a personal injury sustained while in appellant's service, on account of its alleged negligence. His complaint was in three paragraphs, and, demanding our first consideration, are the alleged errors in overruling demurrers to each of such paragraphs.
It is alleged in the first paragraph of the complaint that appellee entered appellant's service as a switchman at 6 o'clock a. m. on October 8, 1906, and was injured in the Oliver yards at South Bend about 8:30 o'clock a. m. of that day; that appellant had in said yards four side-tracks south of the main track and connected by a "lead" track; that it became appellee's duty to couple a loaded car, which was being moved along said lead track at the rate of two miles an hour, to a car standing on side-track number two; that the cars were equipped with automatic couplers, but the pin of the coupling on the forward end of the loaded car had been pulled from its socket, and could not be replaced by means of the lever; that it was necessary for appellee to go in front of said car and replace the pin in its socket and adjust the coupling by hand, so that the cars would couple automatically; that appellee stepped in front of the moving car for the purpose stated, and while walking along, absorbed in the work of replacing the pin and adjusting said coupling, and in the exercise of due care, the shoe on his left foot caught in a frog formed by the converging rails at the south side of side-track number two, and while trying to extricate his foot from said frog he was struck by the moving car, thrown under its wheels, run over, and thereby injured.
It is alleged that appellant knowingly, negligently and carelessly permitted the blocking in said frog to be and become so worn and rotten that only a small piece of wood about six inches in length remained, which was wholly unsuitable and inadequate to block said frog, and to keep the feet of employes from becoming fastened therein; that said piece of wood was not nailed nor fastened, but lay loose in said frog, and appellee's foot was caught, and he was thrown and injured by reason of the fact that said frog was improperly, defectively and inadequately blocked, as aforesaid.
It is further alleged that it had been and was appellant's custom and practice to block all frogs upon its lines, switches and side-tracks, which fact was known to appellee, and relied on by him at the time he entered appellant's service, and was injured; that prior to his injury he had no knowledge of the defective blocking of said frog, but that appellant knew of the defective and dangerous condition of said frog in time to repair it before this accident, but negligently failed and omitted to do so.
Appellant challenges the sufficiency of this paragraph, claiming that it discloses contributory negligence, or that appellee's injury was the result of a risk assumed by him.
Appellee avers, in general terms, that he was in the exercise of due care when injured, and the particular facts alleged do not contradict this averment. It is well settled that contributory negligence must affirmatively appear on the face of the complaint, to justify the sustaining of a demurrer thereto for such cause.
It is alleged that it was the custom and practice of appellant to block all of its frogs, which fact was known to appellee, and that he had no knowledge of the unsafe condition of the frog in question, and, relying on such custom and practice, and being absorbed in the performance of his duties, he did not discover the defect that caused his injury. These allegations were abundantly sufficient to repel any claim that the accident was the result of an assumed risk. Appellant's objections to this paragraph are untenable, and its demurrer was correctly overruled.
The second paragraph contained all the allegations of the first, and further alleged that appellant negligently permitted the coupling on the forward end of the moving car to be and remain in a non-automatic, inoperative and defective condition, in that the cotter pin, which fits into the lower end of the coupling pin, and prevents it from pulling out of its socket, was lost, so that it was necessary, in order to operate said coupling, to go in front of said car and replace said coupling pin and adjust the coupling prior to each impact.
The third paragraph of complaint contained all the allegations of the first, and, in addition, alleged a breach of the federal statute, making it unlawful in moving interstate traffic for an interstate carrier to permit a car to be used which is not equipped with couplers, coupling automatically by impact, and which can be uncoupled without the necessity of going between the cars. 27 Stat. p. 531.
The first paragraph having been held good, it is manifest that for the same reason, as well as other reasons, the second and third paragraphs were properly held sufficient.
The jury with the general verdict returned answers to a number of interrogatories, and appellant moved for judgment in its favor on the interrogatories and answers thereto, notwithstanding the general verdict. This motion was overruled and this ruling assigned as error. It is urged in this connection that appellee was guilty of negligence in attempting, in a dangerous manner, to adjust the coupler, when he might have adopted another and safe way. This contention is not sustained by the special findings of the jury. It is specifically found that appellee, when injured, was performing his work in the manner usual and customary in appellant's Oliver yards, and that the other way suggested, in which the coupler might have been adjusted, was "always dangerous." The answers to interrogatories do not contradict the general verdict, and appellant's motion for judgment was rightly overruled.
A new trial was sought on the grounds of error in giving and in refusing to give certain instructions, in the admission and rejection of certain evidence, in not requiring the jury to make fuller and more specific answers to certain interrogatories, and because the verdict is not sustained by sufficient evidence and is contrary to law.
Instruction two is attacked because the element of assumed risk is not included. The law upon the subject of assumption of risk was fully and correctly covered in instruction five, given at the request of appellant. The court is not required to embody in a single instruction every legal proposition applicable to the case, but it is sufficient if the instructions as a whole correctly advise the jury upon the law.
Complaint is made of the giving of instructions five, eight and nine, at appellee's request. These instructions were addressed to the question of liability for a violation of the federal statute requiring automatic couplers. The third paragraph of complaint declared upon a breach of this statute. There was evidence making the giving of such instructions proper, and taking the instructions together they accurately and fully express the law upon the proposition to which they relate.
The court advised the jury that if the evidence showed the existence of a general practice in appellant's Oliver yards, at the time of, and for several years prior to this accident, of employes' going in front of slowly-moving cars to adjust couplings, of which appellant knew, or in the exercise of ordinary care ought to have known, and in which it knowingly acquiesced, and which practice appellee knew and relied upon, it would be competent to consider such general practice in connection with other facts and circumstances in evidence in determining whether appellee was guilty of contributory negligence at the time he received his injury.
The instruction was unduly guarded. Its statements were more favorable to appellant than the applicable rule of law required. Appellee, in the discharge of his duties, was held to the exercise of only ordinary care, or that degree of care and watchfulness which men of ordinary prudence usually exercise for their own safety in similar circumstances. The manner in which other railroad men of reasonable prudence were accustomed to adjust couplers on slowly-moving cars provided such practice was not manifestly negligent, would fix the standard by which appellee's conduct must be tested. This would be true even in the absence of knowledge of such custom by either appellant or appellee. Evidence of a practice in accord with appellee's conduct was competent, and this instruction was relevant and proper. Pittsburgh, etc., R. Co. v. Nicholas (1906), 165 Ind. 679, 76 N.E. 522; Pennsylvania Co. v. McCormack (1892), 131 Ind. 250, 257, 30 N.E. 27; O'Mellia v. Kansas City, etc., R. Co. (1893), 115 Mo. 205, 21 S.W. 503; LaBarre v. Grand Trunk, etc., R. Co. (1903), 133 Mich. 192, 94 N.W. 735; Weed v. Chicago, etc, R. Co. (1904), 5 Neb. 623 (Unofficial) , 99 N.W. 827; Louisville, etc., R. Co. v. York (1900), 128 Ala. 305, 30 So. 676; Pioneer Fire Proof, etc., Co. v. Sandberg...
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