Hill v. Chicago, I.&L.R. Co.

• Decision Date: 07 March 1919
• Docket Number: No. 23300.,23300.
• Citation: 188 Ind. 130,122 N.E. 321
• Court: Indiana Supreme Court
• Parties: HILL v. CHICAGO, I. & L. R. CO.

188 Ind. 130

122 N.E. 321

HILL

v.CHICAGO, I. & L. R. CO.

No. 23300.

Supreme Court of Indiana.

March 7, 1919.

Appeal from Circuit Court, Newton County; Charles W. Hawley, Judge.

Action by Frank Hill against the Chicago, Indianapolis & Louisville Railroad Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914; Acts 1901, c. 259. Reversed and remanded, with directions.

C. C. Hine and H. R. Kurrie, both of Chicago, Ill., and Wm. Darroch, of Kentland, for appellant.

Wm. H. Parkinson and Abraham Halleck, both of Rensselaer, for appellee.

MYERS, J.

Appellant brought this action against appellee to recover damages for personal injuries received by him on November 26, 1912. The complaint was in three paragraphs. A demurrer for want of fact was sustained to the first and second, and overruled to the third. A general denial to the third paragraph formed the issue submitted to a jury, resulting in a verdict, and judgment in favor of appellee. The sustaining of appellee's demurrer to each the first and second paragraphs of complaint, and the overruling of his motion for a new trial, are here separately assigned as error.

It appears from each the first and second paragraphs that at the city of Rensselaer, Ind., appellee maintained stock pens for the use of shippers of stock over its line of railroad. On the south side of these pens it maintained a switch track on which it placed cars into which cattle, hogs, and other live stock were loaded from these pens by means of a chute. South of this track, and at a distance only sufficient to permit cars to pass, appellee maintained what was known as its main track, and south of this track another switch track.

With reference to the handling of stock at this point it was the custom of appellee to place its stock cars on the switch, or what may be called the loading track, and leave to the shippers the work of placing them in position for loading. If more than one car at a time was to be so used, the shipper would move by hand the loaded car away from the chute, and then move the empty car into place for loading.

On the occasion of the alleged injury four cars were to be loaded. One had been loaded and pushed east out of the way. Appellant and five other persons were engaged in this work. After moving the loaded car, and while returning to the west end of the empty car, appellant, while walking between the main track and the empty car, was struck by one of appellee's locomotives, which approached him from the east on the main track, and coasting at a speed of 50 miles per hour. For more than 1 mile east from the point where the accident happened, the track was clear and almost level. The accident occurred about 6 o'clock in the evening. It was dark, and the wind was blowing from the northwest.

It also appears that the space between the loading track and pens was obstructed by various kinds of débris, thereby destroying its use as a passageway. The space between the loading track and the main track was obstructed by rails taken from the latter track. The recitals common to both paragraphs with reference to pens, tracks, and work in which appellant and his associates were engaged, and the allegations of negligent obstruction of the spaces between the main track and empty car, and loading track and pens, are all to be considered, not only for the purpose of showing that appellant was rightfully upon the premises of appellee, but that he was thereby led into an unsafe place while at work loading the cars.

The acts of negligence charged in the first are: (1) In permitting the two spaces to be and remain obstructed, thereby causing appellant and his associates in the performance of their work to walk upon and dangerously to the main track; (2) in failing to give crossing signals for highway and street crossings, one of which was within a short distance from their working place. The proximate cause relied on in this paragraph is the failure of appellee to give the statutory signals for highway and street crossings.

[1][2] Section 5431, Burns 1914, makes it the duty of a railroad company to give signals when its engine approaches the crossing of any public highway in this state. The object of this statute is to warn persons on the highway or crossing of the approach of trains. The failure to so warn such persons constitutes negligence per se. Indianapolis, etc., R. Co. v. McLin, 82 Ind. 435;Baltimore, etc., R. Co. v. Walborn, 127 Ind. 142, 26 N. E. 207.

Appellant was injured while in appellee's yards. He was not, as is a traveler upon a highway, within the protection of the statute requiring the company to give him highway warning signals. Reynolds v. Great Northern R. Co., 69 Fed. 808, 16 C. C. A. 435, 29 L. R. A. 695;Williams v. Chicago, etc., R. Co., 135 Ill. 491, 26 N. E. 661, 11 L. R. A. 352, 25 Ann St. Rep. 397; Halbert v. Wabash R. Co., 151 Ill. App. 352;Norfolk W. Ry. Co. v. Gesswine, 144 Fed. 56, 75 C. C. A. 214;Everett v. Great Northern R. Co., 100 Minn. 309, 111 N. W. 281, 9 L. R. A. (N. S.) 703, 10 Ann. Cas. 294;Baltimore, etc., R. Co. v. Bradford, 20 Ind. App. 348, 49 N. E. 388, 67 Am. St. Rep. 252. There was no error in sustaining the demurrer to the first paragraph.

[3] The second paragraph proceeds upon the theory: (1) Negligent obstruction of the two passageways, thereby forcing appellant and his associates into a dangerous place in the performance of their work. (2) Negligence in failing to equip the locomotive which collided with appellant, with a headlight of not less than 1,500 candle power, in accordance with an order of the Railroad Commission, which order was at the time in full force and effect. (3) Negligence in equipping said locomotive with a headlight of less than 100 candle power so that no rays of light were reflected along the track in advance of the locomotive to warn appellant of its approach or to enable those in charge of the locomotive to observe and warn him of the danger in time to avoid the accident.

This paragraph presents three questions: (1) Was appellant under the facts disclosed by this paragraph a mere licensee or trespasser while on the premises of appellee to whom appellee owed no duty other than not to wantonly or willfully injure him? (2) Did the facts alleged affirmatively show he was guilty of contributory negligence? (3) Did appellee violate any duty owing to appellant in failing to equip its locomotive with a headlight in compliance with the order of the Railroad Commission alleged to be in full force and effect?

The allegations of this paragraph clearly show that the work in which appellant was engaged was not only beneficial to the person whose stock was being loaded, but to appellee as well. The work was being done in the usual and customary manner. The manner of handling loaded and empty cars at this point was known and understood by both parties to this case. The facts disclosed by this paragraph are sufficient to invoke the general rule as stated in 33 Cyc. 764, as follows:

“Where one is engaged on or about railroad tracks or cars in work which is mutually beneficial to himself and the railroad company, and his work requires him to go on such tracks or cars, his going thereon when required is generally held to be by the express or implied invitation of the railroad company, and he is neither a trespasser, nor a mere licensee.”

[4] Appellant's work, as appellee well knew, required him to be in close proximity to its main...