Indianapolis Traction & Terminal Co. v. Spangler

• Decision Date: 27 March 1919
• Docket Number: No. 9727.,9727.
• Parties: INDIANAPOLIS TRACTION & TERMINAL CO. v. SPANGLER.
• Court: Indiana Appellate Court

69 Ind.App. 631

122 N.E. 596

INDIANAPOLIS TRACTION & TERMINAL CO.

v.SPANGLER.

No. 9727.

Appellate Court of Indiana, Division No. 2.

March 27, 1919.

Appeal from Superior Court, Marion County; V. G. Clifford, Judge.

Action by Otto Spangler against the Indianapolis Traction & Terminal Company. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed.

D. E. Watson, M. E. Foley, and W. H. Latta, all of Indianapolis, for appellant.

Robert Dalton and Wm. E. Reiley, both of Indianapolis, for appellee.

NICHOLS, J.

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, Ind., 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 employés of the appellant there were at said time two men, one employed as a motorman and the other an 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 employés 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 204 was standing, only a short distance from the pay car; that at said time the appellant and their servants and employés were in full view of said motorman and conductor, who were in control and operation of car 204, and that said motorman and conductor saw, or by the exercise of ordinary care should have seen, this appellee and other employés standing in line along the side of said pay car and to the east thereof, and between the tracks upon which said car 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 204 forward, and ran said car rapidly, carelessly, and negligently past said pay car and past the line of employés so standing in line, including this appellee, and that thereby appellee was struck by said car 204, and was rolled and crushed between said pay car and car 204 and greatly injured. The appellee was a machinist by trade, 32 years of age, with an expectancy of 34 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.

[1] 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...