Grand Trunk Western Railway Company v. Melrose
| Decision Date | 06 June 1906 |
| Docket Number | 20,545 |
| Citation | 78 N.E. 190,166 Ind. 658 |
| Parties | Grand Trunk Western Railway Company v. Melrose |
| Court | Indiana Supreme Court |
From Laporte Circuit Court; John C. Richter, Judge.
Action by Robert Melrose against the Grand Trunk Western Railway Company. From a judgment on a verdict for plaintiff for $ 21,170, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Reversed.
Samuel Parker, and Anderson, Du Shane & Crabill, for appellant.
Frank E. Osborn and Brick & Bates, for appellee.
This action was brought by the appellee, a locomotive engineer, to recover damages for personal injuries received by him while in the employ of the appellant. The accident, in which appellee was injured, occurred on April 25, 1902. At the time he was in charge of the engine which was drawing a passenger-train from Chicago to Battle Creek, Michigan, over appellant's railroad, which runs through the village of Haskell, Indiana. The train was due at Haskell at 10:20 p m., but was a few minutes behind time. A violent wind and rain storm was prevailing at Haskell at that time. The train passed through the village and was moving rapidly, when, at a point about two miles east of that station, it collided with an empty box-car standing on the track. The collision caused the engine to leave the track and fall on its side. The appellee did not escape from the engine, but went over with it, was caught and held in the wreckage, and thereby sustained the injuries of which he complains. At Haskell and beyond the railroad runs almost due east and west. At the place named, on the north side of the main track, appellant has a side-track 1,800 feet long that connects at the east end with the main track. This side-track was used, among other things, for the storage of cars. For three or four years prior to the middle of February, 1902 this siding had a derailing switch connecting it, at the east end, with the main track. At the time of the accident, owing to accumulations of ice and snow, rendering the switch difficult of operation, the loose rail of the derailing device was spiked up to the rail on the main track and the derail was thereby rendered inoperative. At some time shortly before the accident, an empty box-car was run in on this siding and left standing on the side-track. On the day of the accident a freight-train crew in the employ of appellant had occasion to pull this car out of the siding onto the main track in order to get some cars from behind it. After getting the other cars out, this empty box-car was "kicked" in on the siding and ridden to its place by a brakeman of the freight-train crew, who applied the brake, stopped it and left it. The point on the siding where the box-car was left was about sixteen inches lower than the east end of the siding where it connected with the main track, and about four hundred feet distant therefrom. At 9:50 p. m. of April 25, 1902, the box-car was still on the side-track and the main track was clear. At that time a freight-train running east had passed Haskell station, and, proceeding eastward, passed the place where the collision occurred. When appellee arrived with his train the storm that was then raging at that place blew from a southwesterly to a northeasterly direction, did considerable damage to buildings, trees, fences and telegraph lines in the vicinity of Haskell, and was raging at the time of the collision. After the passage of the freight above mentioned, from some cause, the box-car alluded to above was passed out of the siding onto the main track and driven eastward, and was overtaken and struck by appellant's train, which caused the accident. Such of the above facts as are relied upon by plaintiff as constituting appellant's liability, are stated in four different ways, in so many paragraphs of complaint, each paragraph proceeding upon the theory that the box-car was blown from its place on the siding out onto the main track and to the point where the collision occurred. Each paragraph of complaint was held to be good on demurrer and appellant answered the general denial. There was a verdict and judgment for appellee. The overruling of the several demurrers to the complaint and appellant's motion for a new trial give rise to the questions presented.
(1) The principal objection urged against the first and second paragraphs is the want, in each, of a sufficient averment that appellant had knowledge, either actual or imputed, that the box-car was left on the siding unfastened and unguarded, and liable to be forced out onto the main track; and knowledge that the main track was obstructed with the box-car before the arrival of the express driven by the plaintiff. The discussion here invited by counsel for appellant, and which has heretofore had extended consideration by this court, involves the questions--whether it is necessary to the complaint in such cases to allege knowledge in the master, when it is shown by averments that the asserted defective condition of the working place, and upon which the negligence relied on is based, was created by the affirmative act or omission of the master and plainly open to observation, or whether the rule requiring averments of knowledge in the master applies only to latent defects and perils. For an elaborate collection of cases upon these subjects, see Indiana, etc., Oil Co. v. O'Brien (1903), 160 Ind. 266, 65 N.E. 918; Evansville, etc., R. Co. v. Duel (1893), 134 Ind. 156, 33 N.E. 355.
These interesting questions become unimportant here because, as we view the first and second paragraphs, knowledge in the defendant is sufficiently alleged to withstand a demurrer. Among other things it is averred in these paragraphs "that said side-track was so constructed, and connected and operated with defendant's main track, that cars left or stored upon said side-track, would, when pulled or pushed by a locomotive engine, or when moved in any other manner, pass from said side-track to and upon the main track." It is further alleged "that, in order properly to protect the public in the use of its said railway line and to guard against accidents and collisions with trains upon its main lines, and to protect the lives and limbs of its employes in charge of the trains operated upon said railway lines, it is, and ever since defendant has owned and operated said railway line it has been, necessary that defendant use care in the use and operation of its switches and side-track aforesaid to prevent collisions of cars with trains running upon its main track, and that no cars be placed upon said side-track or be permitted to stand thereon in such manner that trains passing upon and along its main line might collide with said car, or in such a manner that said car might be pushed or forced or in any other way run out of said side-track to and upon the main track of said defendant company, and thereby be permitted to collide with trains being operated upon said main line; that on said date the defendant had full knowledge of all of the matters and things averred in the premises; that on said April 25, 1902, and before the time for the train and engine operated by the plaintiff was due to pass said station aforesaid and to pass over that part of defendant's said main line east of Haskell aforesaid, the defendant, by its representatives, agents, employes and servants in charge of a train of freight-cars on its said railroad, placed and caused to be placed upon its aforesaid side-track at and near the aforesaid station of Haskell, an empty car, well knowing at the time that plaintiff was operating and running its train as aforesaid upon its main line and track as aforesaid, and well knowing that if said car should, in any manner, leave or be permitted to leave said side-track, and in any manner or way be removed or permitted to be removed, or pushed or pulled from said side-track to and upon the main line of said defendant company, that said car would collide with the engine and train in plaintiff's charge, and that great loss of life and personal injury would be the probable result thereof."
It is also shown that the defendant had used the side-track at Haskell for the setting and storage of cars for more than a year, and had full knowledge of all the facts in the premises alleged in the several paragraphs. The general averment of knowledge is distributive in its meaning, and, we think fairly relates to the nature of the side-track, its relation to the main track, the construction, office and operation of the derailing device, the spiking and fastening of the derail so it could not be used to prevent the passage of cars from the side to the main track; that the freight-car was left on the side-track unguarded and that without the use of the derail cars stored or set on the side-track, and left unfastened and unguarded, were liable to be moved by the wind or other power out onto the main track. The matter of the defendant's knowledge is further shown by the averment that the defendant failed to keep the main track clear, "well knowing" at the time that the train in charge of the plaintiff would pass, and "well knowing" that if any substantial obstruction was permitted on the main track a serious collision would occur, and, "with full knowledge of the facts alleged in the premises, permitted an empty freight-car to drift out of the side-track onto the main track." It is not necessary that the defendant's knowledge should be specifically averred to each particular item. Evansville, etc., R. Co. v. Krapf (1896), 143 Ind. 647, 655, 36 N.E. 901; Louisville, etc., R. Co. v. Jones (1886), 108 Ind. 551, 555, 9 N.E. 476. The allegations concerning the defendant's knowledge contained in the first and second paragraphs of the...
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