Hadley v. Lake Erie & W.R. Co.

• Decision Date: 21 April 1897
• Citation: 46 N.E. 935
• Court: Indiana Appellate Court
• Parties: HADLEY v. LAKE ERIE & W. R. CO.

46 N.E. 935

HADLEY

v.LAKE ERIE & W. R. CO.

Appellate Court of Indiana.

April 21, 1897.

Appeal from circuit court, Tipton county; M. B. Lairy, Special Judge.

Action by Merit Hadley against the Lake Erie & Western Railroad Company for personal injuries. Judgment for defendant, and plaintiff appeals. Affirmed.

John F. Neal and Waugh, Kemp & Waugh, for appellant. W. E. Hackedorn, John B. Cockrum, and Shirts & Kilbourne, for appellee.

WILEY, J.

The appellant sued appellee for personal injuries alleged to have been received by him by reason of its negligence. The acts of negligence relied upon are fully stated in the complaint, and are, in substance, as follows: That appellant had purchased at Indianapolis, Ind., a stock of groceries for a retail store he was about to open, and had said stock shipped to him over appellee's railway to Cicero, Ind.; that the day of their arrival there he paid to appellee's local agent the freight charges for shipping, and the car containing his said goods was side tracked on the principal switch at said station, which was the usual place for unloading freight; that after payment of the freight bill he took with him a team of horses, attached to a wagon, and a servant, to assist him in unloading said groceries, and that he was directed by defendant's local agent to drive to said car and unload his said goods; that said agent informed him he would have ample time to do so before any car or train would move upon said side track; that, following said directions and relying upon said statements, he immediately drove to said car; that said agent knew of said fact; that he drove his said wagon up close to the door of said car, as it was necessary for him to do, so he could transfer said merchandise therefrom to said wagon; that it was necessary for him to get said wagon very close to the door of said car, for the reason that many of the articles were very heavy, including a barrel of sugar, a barrel of oil, and other heavy articles, and that said agent, at the time of giving said directions, had knowledge of the character and weight of the same; that appellant and his said servant commenced at once to remove said merchandise from said car to said wagon, and worked diligently, and after completing the same, and before he had time to drive away from said car, and with the knowledge of the conductor and of said agent, the appellee, by its employés in charge of a locomotive train of freight cars, carelessly and negligently ran the same upon said side track, and against the car from which appellant was unloading said goods, moving said car rapidly, and before he had time to get away from said car, and without any notice or warning whatever; appellant's wagon was caught by a fixed iron step or ladder attached to said car, and said wagon turned over, and appellant, who had just stepped from said car to said wagon, was thrown to the ground, with his foot under a wheel of said wagon, and said barrels and freight falling upon him, resulting in great injury to his person and property, etc. Appellee answered by a general denial. The cause was submitted to a jury for trial, and upon proper directions a special verdict returned. On the day of the return of the special verdict, each party moved for judgment in its favor, respectively. At the subsequent term, to wit, on the 12th day of December, 1895, being the twenty-second judicial day of the November term, 1895, of said court, appellant withdrewhis motion for a judgment in his favor, and moved the court, in writing, for a venire de novo. This motion the court overruled, and appellant excepted. Thereupon appellant renewed his motion for a judgment, which was overruled, and he excepted. Appellee's motion for judgment was sustained by the court, and to this ruling the appellant excepted. On the 17th day of December, 1895, being the twenty-sixth judicial day of the November term, appellant asked leave and offered to file his motion for a new trial, to which appellee objected. The court sustained said objection, and the appellant excepted.

Appellant has assigned error as follows: First, the court erred in overruling appellant's motion for judgment in his favor upon the special verdict; second, the court erred in sustaining appellee's motion for judgment in its favor on the special verdict; third, the court erred in overruling appellant's motion for a venire de novo; fourth, the court erred in refusing appellant leave to file his motion for a new trial; fifth, the court erred in sustaining appellee's objection to appellant's filing and offering to file his motion for a new trial.

The special verdict need not be set out in full in this opinion, for it is sufficient for us to state the pivotal and material facts as found by the jury, which are as follows: That appellee owned and operated a line of railroad running from Indianapolis northward, and through Cicero, Ind., at which place it maintained a depot and a station agent, and where it received and discharged both passengers and freight. That appellant was about to engage in the mercantile business at Denning, Ind., and had purchased a bill of goods at Indianapolis, and had them shipped over appellee's road to Cicero. That said goods arrived at said station on the morning of March 31, 1894, and were placed upon a side track lying parallel with, and on the east side of, the main track, the station being on the west of said main track. That the side track extended six or seven blocks or squares, and connected with the main track at either end. While there was no platform along the side track, it was used for loading and unloading freight, and for side tracking trains. At the time appellant's goods reached said station, and for a long time prior thereto, said town of Cicero was and had been a passing place for both passenger and freight trains. That the appellant, for at least 10 years prior to the time of the injury, had been familiar with the location and construction of said station and tracks. That said town of Cicero and said side track were the passing point for two or more trains at or near the time the accident complained of occurred, and that appellant knew that fact at the time he went to unload his said stock of goods. That in the afternoon of March 31, 1894, a southbound freight train went in upon said side track from the south end, and backed up against the car containing appellant's freight, and was then cut in two at the various street crossings over which it extended, and the engine drawing said freight train was engaged in switching on the main track and side tracks at the time appellant went to unload his freight. At the same time a passenger train came from the north, which was also run in on said siding to permit a passenger train from the south to pass. That appellant knew that it was uncertain when the freight train that had backed up against the car containing his freight would couple up. That, when appellant went to said car containing his freight, he did not look up and down the track to ascertain where said freight engine and train were, and after he reached said car he did not pay any attention to the movements of said freight train. That, upon arriving at said car, appellant entered the same, while his servant and assistant remained in the wagon, and appellant passed said freight out to said servant, who placed it in the wagon, and during the time of unloading said freight neither the appellant nor his servant made any effort to ascertain the movements of said freight train. At or about the time of the accident complained of, one freight and one passenger train were on said side track. That at the time of the accident none of the trainmen knew that appellant was unloading his freight. We quote in full the following question and answer: “Did plaintiff drive to said freight station, and pay the freight on the goods mentioned, * * * about five or ten minutes prior to the accident; and did he then know that said freight train was upon said side track, and that said engine was switching in the neighborhood? Answer. Yes; but it might have been a few minutes longer.” That prior to said accident appellant did not know that said freight engine was coming back to said train upon said side track. We also quote the following question and answer in full: “When plaintiff first started from the freight station to the car containing his goods, did the defendant, or any of the agents, direct him so to do? Answer. The evidence shows that the plaintiff received information, when said plaintiff paid the freight, that said plaintiff's goods were in a car on the defendant's side track, and, when said plaintiff got around on Jackson street, that the freight agent directed the said plaintiff to the car in which said plaintiff's goods were.” Also, the following: “On said occasion, was there a freight train on said side track, coupled to said car in which was plaintiff's freight, extending southwesterly along said side track, but cut in two at the street crossings, and the engine belonging thereto was engaged in switching in and around said town? Answer. Yes.” That appellant's wagon was in such close contact with the car that any ordinary movement of the train in coupling up was liable to upset it. Appellant propounded to the jury the following questions: “Did said agent direct the plaintiff to drive around to said car, and unload said articles and groceries therefrom into his wagon? Answer. Yes.” “Did said agent further state to the plaintiff at the time that he would have ample or plenty of time to get the same before any train or cars would move upon said side track? Answer. We, the jury, find from the evidence that the agent told plaintiff that he had time to get his goods out of the car.” That appellant relied upon said instructions, and immediately drove to said car for the purpose of unloading his said freight. That some of the articles of merchandise were heavy, and it was...