Haskell & Barker Car Co. v. Prezezdziankowski
| Decision Date | 29 January 1908 |
| Docket Number | No. 21,031.,21,031. |
| Citation | 170 Ind. 1,83 N.E. 626 |
| Court | Indiana Supreme Court |
| Parties | HASKELL & BARKER CAR CO. v. PREZEZDZIANKOWSKI. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, La Porte County; John C. Richter, Judge.
Action by Frank Prezezdziankowski against the Haskell & Barker Car Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.Frank E. Osborne, Wm. A. McVey, L. L. Osborne, and M. T. Kreuger, for appellant. Weir, Irwin & Koroleski, for appellee.
This is a common-law action for negligence involving the relation of master and servant. It is averred, among other things, in the first paragraph of appellee's complaint, that appellant owned and operated a manufacturing plant, including a foundry and yards, and through and about its premises operated a certain “pony engine” and cars, and also owned a number of trucks for transporting materials by hand about its establishment; that a railroad track ran through said plant westward to a coal shed, and described a short curve to the north at the point of the accident; that certain piles of iron stood north of said track, leaving a space between the same and the track sufficiently wide to allow said trucks to pass in safety; that at the time of the accident appellee was at work north of the track loading certain iron upon a truck, and that on said day appellant, by and through its servants whose names are unknown to appellee, carelessly and negligently left and permitted a certain truck to remain across said passageway in close proximity to the track, and appellant carelessly and negligently permitted its engine to be propelled over said track and past said point in charge of but one man (the engineer), and carelessly failed to provide another person to keep a lookout upon the side of the track where said truck was located; that as said engine passed eastward over said track drawing a flat car, which had two stakes upon each side, running down beyond the bottom of the car bed and resting upon the steel truss which separated the side beams underneath said car, in passing the point where the track curves and the truck had been carelessly left as aforesaid, said truck was caught by one of the stakes upon said car, and carried along and thrown against appellee with force and in such a manner as to crush his leg between said truck and a pile of iron, necessitating amputation at the knee. The second paragraph of complaint charged that appellant carelessly and negligently suffered and permitted the truck to be placed in its yards in such close proximity to the railroad track that said car in passing that point would hook onto the same, and, knowing of the location of said truck, carelessly and negligently suffered and permitted it to be and remain in such place until the happening of the accident. The negligence charged in the fifth paragraph of complaint was in allowing a certain footstep on said flat car to be and remain in a broken, bent, and twisted condition in such a way as to project from the side of the car and catch upon said truck. Demurrers to each of these paragraphs of complaint were overruled, and appellant answered by general denial. A trial by jury resulted in a verdict for appellee, and with its general verdict the jury returned answers to numerous interrogatories. Appellant's motion for judgment upon the answers of the jury to interrogatories, notwithstanding the general verdict and motion for a new trial, were overruled, and judgment rendered in favor of appellee in accordance with the general verdict.
The assignment of errors in this court embraces all adverse rulings. Appellant is not a railroad company engaged in transportation, and it appears from the evidence and answers to interrogatories that the car in question was owned by another company, and was received upon its siding merely to be unloaded. It is manifest, therefore, that the duty of inspection owed by a transportation company to its employés does not obtain in this case. Louisville, etc., R. Co. v. Bates, 146 Ind. 570, 45 N. E. 108;Neutz v. Jackson, etc., Co., 139 Ind. 411, 416, 38 N. E. 324, 39 N. E. 147;McMullen v. Carnegie Bros. Co., 158 Pa. 518, 27 Atl. 1043, 23 L. R. A. 448;McGill v. Maine & N. H. Granite Co., 70 N. H. 127, 46 Atl. 684, 85 Am. St. Rep. 618. Appellee's counsel concede that the verdict cannot rest upon the fifth paragraph of complaint, and this paragraph will not receive further consideration.
The insufficiency of the first and second paragraphs of complaint has been earnestly and ably urged. Without discussing these errors separately it is our conclusion that the merits of the controversy so fully appear from the answers of the jury to interrogatories as to enable and to require us to finally end the litigation. It appears from the special findings of the jury: That on June 7, 1905, appellant was a corporation owning and operating a plant for the manufacture of railroad cars at Michigan City. That appellee was 30 years of age, and possessed of good eyesight and hearing. He had been employed as a miner in Pennsylvania, worked three years in a factory at South Bend, and entered appellant's employ July 16, 1902, and remained in its service for three years immediately before receiving his injury. He worked one year in the wheel foundry, one year in the blacksmith shop, and the last year as a roustabout. That while so employed, at 9 o'clock a. m. on June 7, 1905, appellee was injured at a point between the foundry and blacksmith shop on what was formerly known as “Sixth street” in Michigan City. That during all of the period of appellee's employment appellant owned and maintained a railroad track commencing at a three-throw switch situated at a point east of its foundry and proceeding thence south and curving into Sixth street, and running thence west through its plant and upon said street, and north of said track was situated a coal bin or storage, to and from which appellant ran coal cars about every other day. That appellee was injured at a point about 150 feet east of the end of said coal shed or bin, at which point Sixth street was 60 feet wide between the buildings, and during the time appellee had worked for appellant piles of iron had stood east of said coal bin and north of the railroad track, and at the time appelleewas injured five or more piles of such iron were in said place. During the winter previous to his injury appellee assisted in hauling iron known as “channel bars” upon certain small trucks from said point to appellant's blacksmith shop, which work was in all respects similar to the work in which he was engaged when injured. That appellee worked one-half day June 6, 1907, at the same work, and in the same place at which he was injured on the following day, and the work which he was doing when injured was that for which he was hired by appellant, but appellee was not fairly familiar with the general situation of that part of appellant's plant known as “Sixth street.” That appellant owned and operated in the conduct of its business four small locomotive engines, known as “pony engines,” one of which was drawing the coal car which occasioned the accident. That the engine had no tender, but was provided with footboards, both in front and in the rear. That about three minutes before appellee was injured said engine backed in from the three-throw switch, passed the point where appellee was at work, with the engineer (Clader) in charge, and a switchman (George Romel) standing on the rear footboard, and looking in the direction which said engine was moving. That Frank Taylor, another switchman, whose work was also in connection with said engine, walked from the three-throw switch to the coal car, but did not follow the track past where appellee was at work. That one Herman Pietrowski, who was in appellant's employ, and engaged in the same work as appellee, removed a truck from the track about 10 feet east of where appellee was at work, and, after the said engine backed west, placed the same between the truck at which appellee was at work and the truck which was caught by the coal car, and but for this the jury do not know whether the injury would have occurred to appellee or not. That Romel coupled the engine to a coal car which had been standing at the coal shed for two days, and Taylor released the brake upon said car. That this car was not owned by appellant, but was delivered to it loaded with coal to be unloaded, and bore upon its sides the following letters: “Montour R. R. Co.” That as this car moved east there was upon north side and at the west end thereof a defective step or stirrup which was bent out of proper position as much as four inches toward the north, but this step did not catch upon the handle of a truck near the track at a point west of where appellee was working. That at and before the time of this accident appellant had in use 450 trucks, 3 of which were at the point where appellee was injured immediately preceding his injury, but the jury say that there was no evidence showing how long they had been there, or who put them there. That the engine drawing the coal car moved east at the rate of three miles per hour, with the engineer in charge, Romel on the footboard between the engine and the car, and Taylor upon the rear of the coal car. That at the time of the accident no iron was piled in Sixth street south of the track, and the most westerly pile on the north side of the track was 4 feet 4 inches therefrom and about 12 feet 6 inches high, and the next pile was 4 feet 2 inches therefrom and 10 inches high, and the next pile 8 feet 8 inches therefrom and 10 feet 2 inches high, and the next two piles 9 feet 9 inches therefrom, and the next 8 feet 5 inches therefrom. The spaces between the piles varied from 6 to 8 inches, and the total distance from the west side of the most westerly pile to the east side of the most easterly pile was 26 feet and 7 inches. That at the time of the accident appellee...
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