Hughes v. Indiana Union Traction Co.

• Decision Date: 03 June 1914
• Docket Number: No. 8309.,8309.
• Citation: 105 N.E. 537,57 Ind.App. 202
• Parties: HUGHES v. INDIANA UNION TRACTION CO.
• Court: Indiana Appellate Court

57 Ind.App. 202

105 N.E. 537

HUGHES

v.INDIANA UNION TRACTION CO.

No. 8309.

Appellate Court of Indiana, Division No. 1.

June 3, 1914.

Appeal from Circuit Court, Tipton County; William C. Purdum, Judge.

Action by Earl Hughes against the Indiana Union Traction Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Dan Waugh, of Tipton, Harness, Moon & Voorhis, of Kokomo, and Gifford & Gifford, of Tipton, for appellant. J. A. Van Osdol, of Anderson, and Blacklidge, Wolf & Barnes, of Kokomo, for appellee.

SHEA, J.

The amended complaint in this case alleges, in substance, the following facts: Appellee is a corporation organized under the laws of Indiana, and for the past eight years has been engaged in operating lines of railroad in Indiana from Indianapolis to Ft. Wayne by way of Anderson, Muncie, and Marion, and from Indianapolis to Logansport, Peru, and Ft. Wayne by way of Noblesville, Tipton, and Kokomo, in all about 200 miles. Said roads are built on the usual grade and of the usual gauge, ties, and rails that are used in the construction of railroads where the motive power used is steam. The lines of road are not built on the public highways, but are constructed over rights of way owned by appellee, and through private property and farms, without reference to highways. Appellee has passenger depots at the main towns along its lines where it maintains ticket offices. It also has freight and express depots at important points, receives freight and express matter, and ships same. Appellee has regular scheduled through trains that are very heavy and of great carrying capacity, accommodating 100 or more passengers, which are scheduled to and do run at a speed of from 25 to 75 miles per hour. Each train consists of one or more cars, and appellee has carried over its lines for the past eight years large freight and express cars loaded with merchandise, live stock, gravel, broken stone, and drainage tile. The trains carrying broken stone, gravel, and tile are composed of from one to six and seven cars. All passenger and freight traffic is carried on by appellee for revenue, and it operates its system as a commercial railroad. The motive power used by appellee is electricity, produced at its power station at Anderson, Ind. In order to keep its power system in repair and efficient, appellee had a line car and a crew of workmen on same to make necessary repairs to wires, poles, and other equipment. Appellant was in appellee's employ as motorman on its line car No. 635. One Wert was employed on said car as conductor, electrician, and mechanic, and one Crum as brakeman and assistant electrician. Said Wert had full control of the loading and unloading of the car, and its movements from one point to another, subject only to orders of the chief electrician at appellee's head offices at Tipton and Anderson, and the train despatcher at Tipton. It was appellant's duty to obey the orders of said Wert with reference to the movements of the car, and he had no control over the loading of the tools and repairs and no knowledge of such loading; his duties being confined exclusively to operating the motor and propelling the car from place to place. On August 13, 1908, said Wert, in obedience to orders from appellee, directed appellant to run the car from Kokomo to Galveston, a distance of about eight miles. There was a cab or house situated in the middle of the car, and in the discharge of his duties appellant's presence was required in this cab, and his attention necessarily given to the motor and observation of the tracks over which he was running the car. The car to his back was loaded with rolls of wire, ropes, ladders, cross-arms, and four or five pike poles. The latter were wooden poles about twelve feet long and two inches in diameter, with an iron spike in one end. There were no side boards or standards along the edge of the work car, and no devices of any kind or character to prevent the poles from jolting and falling off when the car was in motion. The poles at said time were placed upon the car without any fastenings or devices to hold them in position. There were loops and staples in the car in which the standards with side boards attached could have been placed, which would have prevented the poles from falling. Appellee carelessly and negligently, with knowledge of this defective condition, ordered the conductor to move the car so loaded at a very high rate of speed, to wit, 50 miles per hour. That while making said trip, and running the car according to appellee's instructions from 40 to 50 miles per hour, and while appellant was giving his full attention to the motor, with his back to the portion of the car loaded with poles, one of said poles, by reason of the jolting of the car and the motion thereof, and by reason of the carelessness and negligence of appellee in failing to secure said poles, worked off said car, and the end with the spike in it, falling first, was caught in the ground and by the motion of the car was thrown forward with great force, crashing through the cab window and striking appellant on the back, seriously injuring him. “That said injury was caused by the carelessness and negligence of the defendant in failing to have said poles fastened and secured upon said car, so that the same could not fall therefrom while the said car was in motion; by the carelessness and negligence of the defendant in failing to provide said car with such means and appliances as were necessary to keep said poles upon said car while the same was in motion, and by reason of the carelessness and negligence of the defendant in starting to move said car at a high rate of speed loaded with said poles in an insecure and unsafe position so that they were liable to fall and could fall from said car, and by the defendant's carelessness and negligence in allowing and permitting said poles to jolt and roll from said car while said car was in motion.” It is further alleged that in the management of the car appellant was entirely ignorant of the proper methods of loading same, or of placing the materials thereon; that said duties were exclusively those of the conductor and his helper. It was the conductor's duty to see that the materials, tools, and implements were placed thereon and properly secured; that appellant had no experience or knowledge regarding the loading of the car, and on said day had no knowledge of the condition of the poles or that they were not properly loaded and secured; that he had no knowledge that said poles were on the car at all; that his injury is permanent; and that he is entirely incapacitated from any work whatever, and will never be able to perform any labor.

Appellee's demurrer to the complaint was sustained, and judgment rendered that appellant take nothing and appellee recover costs.

The question presented and contended for by appellant in his brief is that the Coemployés' Liability Act (section 8017, Burns 1908) applies to employés of interurban railroads, and that the complaint states a cause of action within its provisions. That question alone is considered, although many alleged infirmities in the complaint are presented by appellee's counsel, even though it might be held that the Coemployés' Liability Act, supra, has application. These we need not consider in view of the conclusion we have reached.

The history of the legislation authorizing the construction of steam railroads, as well as street and interurban railroads, is proper to be considered upon the question of the application of the Coemployés' Liability Act presented, and the intention of the Legislature with respect thereto. 1 Revised Statutes 1852, at page 409, contains an act for the “incorporation of railroad companies.” Later, and while said act was in force, an act was passed for the “incorporation of street railroad companies.” Acts 1861, Extra Sess. p. 75; sections 5450-5458, Burns 1901. Interurban railroad companies are organized under this act as later amended and extended.

In 1865 (Acts 1865, p. 63), it was provided that any street railway company “operating such road within any of the incorporated towns or cities of the state, and desiring to extend their road beyond such town or city limits, on any state or county road, or other public highway, may do so after procuring the consent of the board of county commissioners of such county.” By an act of the Legislature approved March 29, 1879 (Acts 1879, p. 175), the powers granted by the act of March 6, 1865, were enlarged so that lines might be built outside of cities or towns, regardless of whether the constructing company was operating a line within a city or town. This act contains the following declaration:

“Whereas, there is no law allowing persons or corporations to build horse or street railways outside of city limits, except to those companies organized for the purpose of building street railways inside of towns and cities, who are allowed to extend their line outside thereof, and it being important that several extensions of street railways be made to extend to fair grounds, neighboring towns, and other important localities, which are situated out of certain corporate limits, it is declared an emergency exists for the immediate taking effect of this act,” etc.

This law remained in force in so far as it affects the question now involved until 1891 (Acts 1891, p. 109), when an act was passed providing that every “company organized under the provisions of this act and owning and operating a street railroad within any city having a population of one hundred thousand *** shall permit the use of its track or tracks by any incorporated suburban passenger railway company from the corporate limits of such city or town to some central point in such city or town” on the payment of compensation, etc.

The provisions of this act are substantially repeated in the act approved March 2, 1899 (Acts 1899, p. 230; section 5454, Burns 1901), in which,...