Lake Erie & W.R. Co. v. Mugg

• Citation: 31 N.E. 564,132 Ind. 168
• Court: Indiana Supreme Court
• Decision Date: 10 June 1892
• Parties: Lake Erie & W. R. Co. v. Mugg.

132 Ind. 168

31 N.E. 564

Lake Erie & W. R. Co.

v.Mugg.¹

Supreme Court of Indiana.

June 10, 1892.

Appeal from superior court, Tippecanoe county; Frank B. Everett, Judge.

Action by Bridget F. Mugg, administratrix, against the Lake Erie & Western Railroad Company. Judgment for plaintiff for $9,000. Defendant appeals. Affirmed.

Wm. E. Hackadorn, Coffroth & Stuart, and F. W. Chase, for appellant. John F. McHugh, A. L. Kumler, and Langdon & Gaylord, for appellee.

MILLER, J.

This was an action by the appellee against the appellant for the alleged wrongful killing of her intestate. Issue upon a general denial of the complaint, trial by jury, verdict for the appellee, and judgment upon the verdict. The complaint charges that the plaintiff's intestate, William Mugg, was in the employ of the defendant as a yard switchman, and that a part of his duties was the coupling and uncoupling of cars in its yards; that on and before the 22d day of January, 1888, there was, in a side track where the intestate was engaged, a defective, unsafe, insufficient, and dangerous rail, caused by there being a strong and sharp piece of the rail, called a “sliver,” which extended outward and along the outside of the rail; that the “defectiveness, unsafeness, insufficiency, and dangerousness of said rail, and the existence of said piece of rail or sliver as aforesaid, was known to the defendant at and before the 22d day of January, 1888, or might have been known by it by the exercise of proper care; and that the existence or presence of the piece of said rail or sliver was not known by the said decedent prior to the 22d day of January, 1888, nor before the time of the reception of the injuries by said decedent as herein described.” “The plaintiff further says that on the 22d day of January, 1888, the said decedent was engaged in the discharge of his said duties of yard switchman on said side track, and that there were then and there two cars to be coupled; that one of said cars was stationary and the other was in motion and approaching said stationary car for the purpose of permitting the coupling of the same to be made by the said decedent; that the decedent, to make said coupling of said cars, had to approach, and was approaching, the drawhead of said stationary car from the outside of the rail having said sliver, and at a point where said sliver was as aforesaid, and while approaching said drawhead as aforesaid the decedent was moving his foot across said rail without any neglience on his part, and while moving his said foot across said rail as aforesaid the said sliver caught and became fastened in the heel of the shoe or boot then and there on the decedent's said foot, without any fault of the said decedent, and in such wise that the foot of the decedent was on said rail, and the said decedent could not, without any fault on his part, withdraw said foot from said rail or his said foot from said boot on said rail as aforesaid; that while said boot was so fastened and held as aforesaid, said car, moving and approaching said stationary car as aforesaid, did approach, and the wheels of said moving car did then and there, without any fault of the decedent, run on and over the said foot and leg of said decedent, and thereby broke and mashed the same, and other injuries were then and there and thereby received by said decedent without any fault on his part; that afterwards, on the ----- day of January, 1888, the said William C. Mugg died from said injuries; that said decedent received said injuries, and died without any fault on his part, and through the negligence of the defendant.” The action of the court in overruling a demurrer to this complaint is assigned as error.

The objection urged to the complaint is the claim that it shows that the deceased had the same means of knowing of the existence of the defect in the rail that the appellant had, that all he had to do was to have opened his eyes to have seen the defect. We are satisfied that the allegations of the complaint charging that the injury was caused by the fault and negligence of the defendant, and that the plaintiff's intestate had no knowledge of the defective condition of the rail, or existence of the sliver, and that the injury was caused without any fault or negligence on his part, are sufficient to repel a demurrer. The fact that he did not, while engaged in making a coupling, see the sliver cannot of itself raise a presumption of contributory negligence on his part. Nor, as against the averments of want of knowledge on his part, can it be determined that he must have known, or should have known, of the defective condition of the track. The duty of track inspector was not, primarily, one of his duties. The objections urged to this complaint were so fully discussed in the well-considered case of Railway Co. v. Pearcy, 128 Ind. 197, 27 N. E. Rep. 479, that we deem it unnecessary to extend this opinion by an examination of the question. To the same effect, see Pennsylvania Co. v. Horton, 31 N. E. Rep. 45, (April 30, 1892;) Railroad Co. v. Hanning, 31 N. E. Rep. 187, (May 10, 1892.)

Application was made to the court, after the issues had been closed, for permission to file an affirmative answer, which was refused. After the refusal the appellant asked permission to file it as a matter of right. We do not find it necessary to review the ruling made by the court in refusing to open up the issues, for the reason that the evidence, which is in the record, and the special verdict returned by the jury, show that the matters set forth in the answer proposed to be filed were given in evidence and embraced in the verdict, and it therefore appears affirmatively that the appellant was not injured by the ruling. Miller v. Hardy, (Ind. Sup.) 29 N. E. Rep. 776; Ball v. Ball, 31 N. E. Rep. 460, (May 21, 1892;) State v. Vogel, 117 Ind. 188, 19 N. E. Rep. 773.

Over 70 causes for a new trial were assigned in appellant's motion, the overruling of which is assigned as error in this court. Considerations of time and space will prevent our examination, in this opinion, of each of these in detail. It is insisted with unusual zeal and earnestness that the special verdict of the jury, in many of its...