Lake Erie & Western Railroad Company v. Hennessey

• Decision Date: 05 October 1906
• Docket Number: 5,519
• Citation: 78 N.E. 670,38 Ind.App. 574
• Court: Indiana Appellate Court
• Parties: LAKE ERIE & WESTERN RAILROAD COMPANY v. HENNESSEY

78 N.E. 670

38 Ind.App. 574

LAKE ERIE & WESTERN RAILROAD COMPANY v. HENNESSEY

No. 5,519

Court of Appeals of Indiana

October 5, 1906

From Delaware Circuit Court; Joseph G. Leffler, Judge.

Action by Alexander Hennessey against the Lake Erie & Western Railroad Company. From a judgment on a verdict for plaintiff for $ 1,000, defendant appeals.

Reversed.

Gregory Silverburg & Lotz and John B. Cockrum, for appellant.

W. A Thompson, W. H. Thompson, C. A. McGonagle and J. Monroe Fitch, for appellee.

OPINION

ROBINSON, C. J.

Action for damages for personal injuries. Complaint in one paragraph; demurrer overruled; answer, general denial; trial verdict for appellee, with answers to interrogatories. Appellant's motion for judgment on the answers and its motion for a new trial overruled. Judgment on the verdict. The rulings on the demurrer and on the motions for judgment and a new trial are assigned as errors.

The complaint avers that a transfer track connected the track operated by appellant and the track of the Chicago, Indiana & Eastern Railroad Company; that the transfer track was owned exclusively by the last-named road, and that after the construction of the transfer track it was used continuously for the transfer of cars and trains from one road to the other; that cars transferred remained upon the transfer track until the receiving party had time to and did inspect the same before taking them away; that each of the companies knew that all such transferred cars were so inspected; that on September 17, 1903, appellee was in the employ of the Chicago, Indiana & Eastern Railroad Company as a watchman and car inspector; that as such car inspector it was his duty to examine all cars set upon the transfer track by appellant to be received and shipped by the Chicago road, and that it was his duty to make such inspection of the cars placed upon such track each day before 6 o'clock p. m.; that in the proper discharge of his duties he was required to and did go and for a time remained under the cars so inspected; that on the above date, at 5:30 o'clock p. m., appellant placed upon the transfer track four freight-cars, three of which were loaded and one empty, which were to be received and shipped by the Chicago road; that immediately after the cars were placed on the track appellant closed the switch so that no other cars could be placed on the transfer track until the switch should be first opened; that after the four cars had been placed on the transfer track by appellant it had no other cars "at said time that it (said defendant company) had any intention or purpose or right to set upon said track;" that thereupon appellee, in the discharge of his duty as such car inspector, proceeded to inspect such cars; that he knew appellant had no other car or cars to put on the transfer track during that day, and that the switch was closed; that when he went under the cars to inspect the same a heavily loaded coal-car, which had been transferred to appellant by the Chicago road, to be by appellant delivered to the consignee, was standing on appellant's track; that at the time appellant...