Jarvis v. Hitch

• Decision Date: 11 December 1902
• Citation: 65 N.E. 608
• Parties: JARVIS v. HITCH.
• Court: Indiana Appellate Court

65 N.E. 608

JARVIS

v.HITCH.¹

Appellate Court of Indiana, Division No. 2.

Dec. 11, 1902.

Appeal from circuit court, Gibson county; O. M. Welborn, Judge.

Action by Oscar Hitch against George T. Jarvis, as receiver. From a judgment for plaintiff, defendant appeals. Affirmed.

M. W. Fields, W. L. Taylor, and J. D. Wellman, for appellant. Lucius C. Embree, for appellee.

COMSTOCK, J.

This action, brought by appellee against appellant, is based on the fourth subdivision of section 1 of the act of March, 1893 (section 7083, Burns' Rev. St. 1901; section 5206s, Horner's Rev. St. 1901), which reads as follows: “That every railroad or other corporation, except municipal, operating in this state shall be liable in damages for any personal injury suffered by an employé while in its service, the employé so injured being in the exercise of due care and diligence in the following cases: *** Fourth. Where such injury was caused by the negligence of any person in the service of such corporation, who has charge of *** any locomotive engine or train upon a railway.” The complaint, in substance, avers that on the 6th day of January, 1900, said Jarvis had in his employ divers men, including the plaintiff, known as the “Bridge gang,” who, with a locomotive engine, machinery, and pile driver, were engaged on said day in repairing a certain trestle, which was a part of said railroad; that said trestle was in height some 15 feet above the surface of the ground, and in the doing of said work said locomotive engine and machinery and said pile driver were upon said trestle, and the part of the work assigned to this plaintiff was below said trestle upon the surface of the ground; that the defendant provided no drinking water for the men engaged in said work except the water in the tank of said engine, which was upon the top of said trestle, and there was no drinking water elsewhere convenient for said men, and with the knowledge of the defendant and of his employés and agents, including the engineer and fireman in charge of said locomotive engine, all of said men were compelled to go, and did go, upon said engine, and to the tank thereof, for drinking water, while so at work; and on said day the plaintiff, by a ladder provided by the defendant, climbed upon said trestle, and went upon said locomotive engine and tank for the purpose of getting for himself a drink of water, which he did, and while he was in the act of returning to his work over the ladder, and just as he had left the tank of said engine, and while he was yet upon said trestle and in the act of leaving the same, and in the exercise of due care, the engineer and other servants of the defendant then in charge of said engine negligently, without any notice or warning to the plaintiff, suddenly moved said locomotive engine, machinery, and pile driver backward against plaintiff, and by reason thereof he was pushed from the trestle, and thrown to the ground, etc. The trial of the cause resulted in a verdict and judgment thereon in favor of appellee for $275.

The first specification of errors question the sufficiency of the complaint; the second the sufficiency of the second paragraph of reply; the third, the action of the court in overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict, the fourth, the overruling of appellant's motion for a new trial. It is urged against the complaint that it does not show a breach of any duty, either express or implied, owing by appellant to appellee; that there is no allegation of a special duty to furnish appellee with water; that such duty is not implied, and that it is only alleged by inference that appellant undertook to furnish water to appellee; that appellee's going upon the trestle for water was for his personal convenience only, and was not upon the invitation of appellant; that it is not alleged that the persons in charge of the engine knew that appellee was on the trestle, or that he gave any notice that he had left his place below, and had gone on the engine. Conceding that the complaint contains certain averments only by inference, and that allegations by inference are not sufficient, still there are facts alleged sufficient to show that appellee was not a trespasser; that he was injured in the exercise of due care on his part, by the negligence of appellant's servants. These averments make it sufficient to withstand demurrer for want of facts. The second paragraph of reply was addressed to the second paragraph of answer. Said paragraph of answer sets up the fact that the engine which caused plaintiff's hurt was not a “locomotive engine,” but was part of the machinery of a “pile driver.” Said paragraph of reply alleged that the locomotive engine described in the complaint was an engine constructed, used, and operated for the purpose of propelling itself along the rails of the railroad described in the complaint, and of hauling upon and along said rails freight cars and other cars, and at the time and before said accident had been used for such purpose. Said paragraph of answer and reply were argumentative, and a general denial was filed to each. The facts alleged in them were provable under the general denial. This action of the court, if erroneous, was harmless.

It is claimed that the answers to interrogatories 2 and 4, returned by the jury, are inconsistent with the general verdict. Interrogatory 2 is as follows: “Did the engineer or other person in charge of the engine which caused plaintiff's hurt know that the plaintiff, at the time that he received his injury, had left his place of duty on the ground, and was on the trestle, or the tender of the engine? Answer. No.” Interrogatory 4 is as follows: “At the time the plaintiff left his place of duty below the trestle, and went upon the trestle and tender of the engine on the occasion when he received...