Indianapolis Traction and Terminal Company v. Spangler
| Decision Date | 27 March 1919 |
| Docket Number | 9,727 |
| Parties | INDIANAPOLIS TRACTION AND TERMINAL COMPANY v. SPANGLER |
| Court | Indiana Appellate Court |
From Marion Superior Court (98,087); V. G. Clifford, Judge.
Action by Otto Spangler against the Indianapolis Traction and Terminal Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
D. E Watson, W. H. Latta and M. E. Foley, for appellant.
Robert Dalton and William E. Reiley, for appellee.
This is an action by appellee against his employer, the appellant for personal injuries alleged to have been sustained by being crushed between two cars owned and operated by the appellant. The case went to issue and trial upon three paragraphs of complaint, to which the appellant answered in general denial. The jury returned a verdict for the appellee, upon which judgment was rendered. Appellant filed its motion for a new trial, which was overruled, and now prosecutes this appeal.
Appellant's counsel, after making request for oral argument, failed to appear at the time fixed therefor, though notified, and failed to inform the court that they would not appear.
The first paragraph of the complaint avers in substance that the appellant, a corporation, owned and operated a street railway in the city of Indianapolis, Indiana, and that on January 20 1915, among its cars which were operated, there were two cars, one designated as a pay car and the other as car No. 204; that the appellant employed at said time, in the conduct of its business, more than five persons; that appellant maintained at said time places in said city for the repairing, cleaning and storing of street cars when not in actual service, and that one of such places was known as the "Louisiana car barns," which was located in said city; that in these barns there were many tracks on which the cars were run and operated and placed temporarily for the purpose of cleaning, repairing and storing, and that such tracks are close together and parallel; that among the employes of the appellant there were at said time two men, one employed as a motorman and the other as a conductor, and that they were at the time in control of the movement and operation of said car No. 204, and were subject to the order and instructions of the appellant, and were acting in the line of their duties; that at said time, and for a long time prior thereto, appellee had been in the employ and service of said appellant, and was subject to its orders and instructions, and was at said time acting within the line of his duty; that at said time the appellee, together with a large number of other employes and servants of appellant, was ordered by appellant to stand along the east side of said pay car, which was, at said time, upon one of the tracks in said Louisiana car barns, and that this appellee, together with others, did stand along the east side of said pay car; that there was another track just east of and parallel with the one upon which the pay car stood, upon which said car No. 204 was standing, only a short distance from the pay car; that at said time the appellant and their servants and employes were in full view of said motorman and conductor, who were in control and operation of car No. 204, and that said motorman and conductor saw, or by the exercise of ordinary care should have seen, this appellee and other employes standing in line along the side of said pay car and to the east thereof, and between the tracks upon which said car No. 204 and the tracks upon which said pay car were standing; that there were a large number of men in front of and behind this appellee as he stood there, and that suddenly and without warning said motorman and conductor started said car No. 204 forward, and ran said car rapidly, carelessly and negligently past said pay car and past the line of employes so standing in line, including this appellee, and that thereby appellee was struck by said car No. 204 and was rolled and crushed between said pay car and car No. 204 and greatly injured. The appellee was a machinist by trade, thirty-two years of age, with an expectancy of thirty-four years, and had been damaged in the sum of $ 7,000, which damages were occasioned solely by the fault and negligence of the appellant's servants, and without the fault or blame of the appellee.
The second and third paragraphs of complaint are substantially the same as the first, except that in the second and third there is no averment that at the time of the accident complained of the appellant employed more than five men.
The only error assigned by appellant is that the Marion Superior Court erred in overruling appellant's motion for a new trial. The appellee has filed his motion to dismiss the appeal, for the reason that the appellant's brief does not, in certain particulars, conform to the rules of the court, but we think there has been a substantial, good-faith effort to comply, and the motion to dismiss is overruled.
The appellant contends that the verdict of the jury is contrary to law, for the reason that appellee, being a fellow servant of the men charged with the negligent act that caused the injury, cannot recover at common law, and that he was not required by the court to bring himself within the terms of the statute. There is no challenge of the complaint in the trial court by demurrer, or otherwise, but, granting that the appellee cannot recover under the second and third paragraphs of complaint, for the reason that they are each based upon commonlaw liability, still, he may recover under the first paragraph of complaint, which is based upon the statute, and this is sufficient to sustain the verdict and judgment. Harris v. Rivers (1876), 53 Ind. 216; Dice v. Morris (1869), 32 Ind. 283; Kelsey v. Henry (1874), 48 Ind. 37. The evidence clearly shows that the appellant employed more than five...
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