Grand Trunk Western Ry. Co. v. Poole
| Decision Date | 29 November 1910 |
| Docket Number | No. 21,508.,21,508. |
| Parties | GRAND TRUNK WESTERN RY. CO. v. POOLE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, La Porte County; John C. Richter, Judge.
Action by David Norman Poole against the Grand Trunk Western Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.Anderson, Parker & Crabill and S. J. Crumpacker, for appellant. Travis & Irwin and Slick & Slick, for appellee.
Appellee recovered judgment for a personal injury sustained while in appellant's service on account of its alleged negligence. His complaint was in three paragraphs, and the overruling of demurrers to each of them has been assigned as error demanding our first consideration.
It is alleged in the first paragraph of the complaint that appellee entered appellant's service as a switchman at 6 o'clock on October 8, 1906, and was injured in the Oliver yards at South Bend about 8:30 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; and it became appellee's duty to couple a loaded car which was being moved along said lead track at the rate of two miles per hour, to a car standing on side track No. 2; 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, and 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 replacing the pin and adjusting said coupling and in the exercise of due care, the shoe on his left foot caught and became wedged in a frog formed by the converging rails at the south side of side track No. 2, and while trying to extricate his foot from said frog, he was struck by the moving car, thrown down and under its wheels, run over, and thereby injured. It is charged that appellant knowingly, negligently, and carelessly permitted the blocking in said frog to be and become so worn and rotted away that only a small piece of wood about six inches in length remained, which was not large enough to block the frog properly, but was wholly unsuitable and inadequate to block the same and to keep the feet of employés from becoming fastened therein; that said piece of wood was not nailed or fastened, but lay loose in said frog, and appellee's foot was caught and he was thrown down 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, practice, and mode of doing business to block all frogs upon its lines, switches, and side tracks, which fact was known to appellee and relied upon by him at the time he entered its service and was injured; and 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 have repaired the same before this accident, and 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 charged that appellant's custom and practice was to block all 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 which 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 charged that appellant negligently permitted the coupling on the forward end of the moving car to be and remain in a nonautomatic, inoperative, and defective condition, in that the cotter pin which fits into the lower end of the coupling pin and prevents the same from pulling out of its socket became and 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 for an interstate carrier to permit a car to be used in moving interstate traffic which is not equipped with couplers, coupling automatically by impact, and which can be uncoupled without the necessity of men going between the cars. Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174).
The first paragraph having been held good, it is manifest that, for the same as well as additional reasons, the second and third paragraphs were properly held sufficient.
The jury with the general verdict returned answers to a number of special interrogatories, and appellant moved the court for judgment in its favor on the special 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 to adjust the coupler in a dangerous manner 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 way 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 certain instructions, in the admission and rejection of certain evidence, in not requiring the jury to make more full and specific answers to certain interrogatories, and because the verdict is not sustained by sufficient evidence, and is contrary to law.
Instruction No. 2 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 No. 5 given at the request of appellant. The court is not required to embody every legal proposition applicable to the case in a single instruction, 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 Nos. 5, 8, and 9 at appe llee'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 and custom in appellant's Oliver yards at, and for, several years prior to, the time of this accident, of employés 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 of which practice and custom appellee knew and relied upon, it would be competent to consider such general practice and custom in connection with other facts and circumstances in evidence, in determining whether appellee was guilty of contributory negligence at the time of receiving his injury. The instruction was unduly guarded and its statements 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...
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