Indiana Union Traction Co. v. Pring

• Decision Date: 26 October 1911
• Docket Number: No. 7,149.,7,149.
• Citation: 96 N.E. 180,50 Ind.App. 566
• Parties: INDIANA UNION TRACTION CO. v. PRING.
• Court: Indiana Appellate Court

50 Ind.App. 566

96 N.E. 180

INDIANA UNION TRACTION CO.

v.PRING.

No. 7,149.¹

Appellate Court of Indiana, Division No. 1.

Oct. 26, 1911.

Appeal from Circuit Court, Randolph County; James S. Engle, Judge.

Action by James A. Pring against the Indiana Union Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.J. A. Van Osdol and Kittinger & Diven, for appellant. Templer & Ogle and Koons & Koons, for appellee.

HOTTEL, J.

Action by appellee for damages on account of personal injury received in a collision while in the employ of appellant as checkman engaged in handling and checking freight and express matter upon one of appellant's electric cars. The case is before this court upon a second appeal; a former judgment in favor of appellee obtained in the Delaware circuit court having been reversed because of the insufficiency of the original complaint. After reversal an amended complaint in three paragraphs was filed in the Delaware circuit court. A motion to strike out parts of this complaint was first filed, which was overruled and exception given to appellant, after which demurrers were filed to each paragraph, which were also overruled, and exception given to each ruling. The case was then put at issue by the answer in general denial and a special answer of the statute of limitation and reply in general denial. There was a trial by jury, verdict for appellee in the sum of $5,750, judgment on the verdict, motion for new trial overruled and exception by appellant, and appeal to this court.

The errors assigned and relied upon are the rulings of the court upon the motion to strike out parts of the amended complaint, the demurrers to each paragraph of the complaint, and the motion for new trial. The third paragraph of the amended complaint, covering 40 pages of appellee's brief, presents all the questions raised by this appeal so far as the pleadings are concerned. The length of this paragraph forbids a copy in this opinion, and we will attempt to set out only enough of the same to render intelligible our disposition of said questions, and our reasons therefor.

This paragraph alleges the corporate existence of the appellant, the nature and character of its business as a carrier, the employment of appellee, the nature and character of his duties, and the service required of him under his employment, the occurrence of the collision of the two cars, appellee's resulting injuries, and their nature and extent, and alleges, in addition the following further facts which we quote from appellant's summary, viz.: “That at the time in question all of defendant's express cars were run on orders issued by the defendant through its train dispatcher by means of telephone. That said Joseph Mahoney was in its employ as general trainmaster, with jurisdiction over its entire system, and that he had authority to take cars to any point on its line, was authorized to employ and discharge men, and do all things necessary to properly superintend defendant's business in the operative department, and was authorized to decide when, how, and under what conditions a special car should be sent out. That Charles Baldwin was its general superintendent of transportation. That the said Mahoney was next in authority and empowered to act in his stead in his absence. Avers that the office of the said Mahoney was in the Union Block in the city of Anderson, and avers the proximity of the office rooms of the dispatcher to Baldwin and Mahoney. That defendant's railway track from the city of Anderson to siding 30, which was located on the northern outskirts of said city, was a double track, at which were located two telephones, used by its motormen and conductors in communicating with its train dispatcher. That on the day in question it was cold, sleeting, raining, lightening, freezing, foggy, dark, and cloudy. Ice was frozen upon its telephone wires, and the electric current then prevailing made said telephone useless for directing the movement of its cars. That said telephone and lines were then not in good working order. That defendant and its train dispatcher and the said Mahoney well knew that fact, and that the said Mahoney, in the absence of the said Baldwin, undertook to, and did, man a car with a crew, and sent the same out as a wild car without a schedule, knowing the condition of said telephones and lines, that messages could not be sent over the same or received, and knowing that the car on which plaintiff was then engaged was between sidings 33 and 32, coming southward, and the said Mahoney, knowing that the train dispatcher did not know of his intention to send out, take out, or cause to be taken out said wild car from Anderson to Tipton, the defendant, acting through the said Mahoney, as such trainmaster, carelessly and negligently failed to telephone from the office of the said Mahoney to the dispatcher while at his office in the Union Block that he was going to send out said car, and then and there negligently failed to go to the office of the train dispatcher in said Union Block, and so notify him, and that the said Mahoney then and there negligently failed to give said dispatcher notice of the taking out of said wild car, and that the train dispatcher had no knowledge thereof, and did then and there decide for the defendant to man said car with one McDonald as its conductor and himself as motorman; *** and ‘did then and there order said car from the defendant's barns, *** and did then and there order the said McDonald as conductor, and himself as motorman, to proceed with said car and take the same out *** north bound, and, in obedience to said orders, the said McDonald, as conductor on said car, and himself, the said Mahoney, motoring said car, and performing the work of motorman in the actual running of said car, proceeded with said car northward to switch 30, *** and attempted for the first time to notify the dispatcher, and said telephones and lines were out of repair and in bad condition, as aforesaid, and useless. *** Said message could not be sent.’ That from said switch 30 northward defendant's line is a single track. That defendant had no rules by which its employés out on its line could protect themselves from collision with a wild car going in an opposite direction, and no means had been provided for such protection. The complaint sets out a copy of the order upon which the express car proceeded from siding 33 to 32. That the said Mahoney at said siding 30, knowing that the dispatcher could not be communicated with by telephone, ‘then and there decided to order said car to be continued on its journey north bound upon said single track line, *** and negligently ordered said crew, consisting of conductor and McDonald and himself acting as motorman in the doing of the physical, manual work of motoring said car, to proceed northward from said switch 30.”’ It is further alleged “that the negligence of the defendant as aforesaid and the negligence of the said Joseph Mahoney as general trainmaster of the defendant acting for the defendant as such, as the agent and representative of the defendant as aforesaid, and the negligence of said Mahoney while yet in his office in failing to notify said train dispatcher of his intention to send out, take out, or order out said wild car as aforesaid, under all the conditions aforesaid, was the sole and approximate cause of said collision and of plaintiff's said injuries received therein as aforesaid; *** that said accident was caused and plaintiff's injuries received as aforesaid proximately and directly by the negligence of the defendant as aforesaid and by the negligence of the said Joseph Mahoney as general trainmaster of the defendant as aforesaid and representative and agent of the defendant as aforesaid, and without any fault or negligence upon the part of the plaintiff.”

The first error assigned presents the ruling of the court on the motion to strike out that part of the amended complaint which alleged the defective condition of the telephones and telephone lines. Appellant contends that these averments were absent from the original complaint, and now appear for the first time in the amended complaint, which was filed more than two years after the happening of the injury, and that under the law an amendment will not be permitted when it will operate to defeat the statute of limitations. Inasmuch as the same question is raised by appellant in its discussion of the evidence under the issue tendered by its answer of the statute of limitations, to avoid repetition we will at this point discuss the entire question presented by these allegations in this amended paragraph.

[1] While there may be some apparent conflict in the application of the law to particular cases, we think the general proposition contended for by appellant that an amendment will not be permitted when it will operate to defeat the statute of limitations is well settled by the decisions of this state. School Town of Monticello v. Grant, 104 Ind. 168, 1 N. E. 302;Fleenor et al. v. Taggart, 116 Ind. 189, 18 N. E. 606;Chicago, etc., Ry. Co. v. Bills, 118 Ind. 221, 20 N. E. 775;Blake v. Minkner, 136 Ind. 418, 36 N. E. 246;Fleming v. City of Anderson, 39 Ind. App. 343-344, 76 N. E. 266.

[2] But do the allegations of this amended pleading supra relative to the appellant's telephones and telephone lines amount to an independent charge of negligence in this regard as a proximate cause of appellee's injury? A careful reading of these allegations discloses that their purpose and intent in the pleading is not to charge independent negligence of defective telephone equipment as the cause, or even as one of the causes, of the appellee's injury. It seems clear to us that the sole and only negligence charged in this third paragraph of the complaint as being the cause of appellee's injury is that of Mahoney. In this connection it must be remembered that this pleading alleges that at the time complained...