OPINION
Coffey, J.
This
was an action by the appellee against the appellant for
personal injuries. The amended complaint was in a single
paragraph, and, omitting the caption, is in the words and
figures following:
"The
plaintiff, John Stupak, for amended complaint complains of
the defendant, the Lake Shore and Michigan Southern Railway
Company, and says that said defendant was, at the time of the
commission of the grievances and happening of the injuries
hereinafter mentioned, and still is, a railroad corporation,
organized and existing under the laws of the State of
Indiana, and owning and operating a line of railroad which
runs eastward from the city of Chicago, in the State of
Illinois, and extends over and across the counties of Lake,
Porter and La Porte, in the State of Indiana; that said
defendant in the operation of its said railroad has for the
last four years run a certain locomotive engine and train of
flat-cars for hauling gravel, stone, slag and other material
along its said railroad for the purpose of repairing its
track; that, from the 1st day of April, 1883, until the
following September, said defendant used said engine and
train of flat-cars in hauling gravel, stone and slag from a
pit near a station on said railroad in Lake county, Indiana,
known as Pine, and distributing the same along said railroad
in said Lake and Porter counties, and had employed as
laborers on said train, and as track repairers in utilizing
and disposing of the material so hauled upon and along the
track by said train, a large number of men, to wit, one
hundred and thirty, who lived at various points along the
line of said railroad between said station of Pine and the
city of La Porte, in said State of Indiana; that the agents
and servants of said defendant in charge of said train and
said work, by direction of said defendant, would leave the
flat-cars at the pit at night, and take the said locomotive
engine and two cabooses or coaches which the defendant had
provided therefor, and convey the said laborers to their
respective places of abode, and in the same manner convey
them to their places of work every morning;
that about thirty of said laborers were engaged during said
time in raising and repairing the track, and the others,
numbering about one hundred, worked on said train of
flat-cars, loading the same with gravel and other materials
at said pit, and riding on said train along the track for the
purpose of unloading said material; that it was the duty of
said body of track repairers under their employment, when
called upon so to do by their foreman, to go upon said train
and assist in unloading the same; that said defendant had in
its service and employment on the 13th day of August, 1883,
and for four months prior thereto, as engineer of the
locomotive engine used to propel said train of cars upon said
work as aforesaid, one Walter Pool, who was habitually
careless and negligent in the discharge of his duties as such
engineer in running and operating said engine and hauling
said train of flat-cars during all of said time, in this,
that during said time said engineer habitually and generally
run and propelled said engine and train of flat-cars at a
high, unusual and dangerous rate of speed, and habitually and
generally, carelessly and negligently started and stopped
said engine and train of cars during said time with great,
unusual and dangerous suddenness, and habitually and
generally during all of said time, carelessly and negligently
stopped and started said train of flat-cars with great
danger, without giving any signal or warning thereof
whatever, and while laborers were engaged in unloading said
train of flat-cars, and was not possessed of sufficient skill
to manage and operate said locomotive engine and train of
flat-cars in an ordinarily careful and prudent manner, of all
of which said defendant had due notice long before said 13th
day of August as aforesaid, but carelessly and negligently
retained said Pool in its service
and employment as such engineer after such notice, and until
the happening of the injuries hereinafter mentioned; that on
or about the 25th day of July, 1883, the plaintiff entered
into the service of said defendant as one of its track
repairers on the work hereinbefore mentioned, and he lived near Burdick Station, along the line of said
railroad in said Porter county, and rode back and forth from
his home to his place of work in one of the cabooses or
coaches attached to said locomotive engine, and provided by
the defendant for the purpose of conveying laborers to and
from their places of work as aforesaid; that at the time he
engaged in the service of the defendant as aforesaid he was
wholly unacquainted with said Pool, and had no notice or
knowledge whatever of his careless and negligent habits and
lack of skill as an engineer as aforesaid, or of his
character or reputation as an engineer, or in any other
capacity; that plaintiff continued in the service of the
defendant as aforesaid, and on the 13th day of August, 1883,
he was ordered and directed by his foreman to go upon said
train of flat-cars and assist in unloading the same; that
said train was then standing still, with the locomotive
engine attached thereto, under the control and management of
said Pool, when plaintiff, pursuant to said direction from
his foreman as aforesaid, and as it was his duty to do, went
upon said train of cars, and while standing on one of said
cars shovelling off material in the line of his duty as such
servant of said defendant, and without any fault and
negligence upon his part, said Pool carelessly and
negligently, and without giving any signal or warning
whatever, suddenly put said engine and train of cars in rapid
motion, whereby the plaintiff was thrown off his feet, and
fell between two of said cars, and was run over and cut,
bruised and mangled, and had his arms crushed and broken, so
that he was permanently disabled and wholly and permanently
lost the use of both his arms, and was by such injuries
rendered sick and sore, and for a long time his life was
despaired of; that he suffered great bodily and mental pain
and distress from his said injuries, and expended a large
sum, to wit, four hundred dollars, for medical services and
nursing in attempting to cure himself thereof; that he was,
at the time of receiving said injuries, in the enjoyment of
good health, and was earning one thousand dollars per year,
but on account thereof has not been able to do
any kind of labor since, and is unable even to feed himself,
or attend to his personal wants, and will remain permanently
in such helpless condition, all to his damage of twenty
thousand dollars. Plaintiff further says that at the time he
went upon the train of cars to assist in unloading the same,
on the 13th day of August, 1883, as aforesaid, he had never
been on said train of flat-cars but once before, and then for
a few minutes only, and he had no notice or knowledge
whatever of the careless and negligent habits of said Pool in
handling and running said engine and train of cars, and had
no notice or knowledge whatever of the character or
reputation of said Pool as such engineer, or in any other
capacity; that said injury occurred wholly without the fault
or negligence of plaintiff, but was caused by the
carelessness and negligence, and want of skill of said Pool
in managing said engine and train of cars as aforesaid, and
by the negligence and carelessness of the defendant in
retaining said Pool in its service as such engineer, after it
had notice of his carelessness, negligence and incompetency
as aforesaid. Wherefore plaintiff asks judgment for twenty
thousand dollars, and other proper relief."
The
defendant filed a motion in writing, asking the court to
require the plaintiff to make his amended complaint more
certain and specific by stating the name or names of all
officers and agents of defendant through whom he expected to
bring notice to the defendant, or if the plaintiff showed
that he could not ascertain and state the name or names of
such officers and agents, that he be required to state what
official position such officer or agent held and in what
manner he was employed. The court overruled the motion, to
which ruling the defendant excepted.
The
defendant demurred to the amended complaint for want of
facts. The court overruled the demurrer, to which ruling the
defendant excepted.
The
defendant answered in four paragraphs. The first was a general denial; and the others set up special
matter. The paragraphs setting up special matter need not be
further noticed, as the case was tried upon the issues raised
by the general denial.
There
was a reply in denial to the second, third and fourth
paragraphs of answer.
The
trial was by jury. Under instructions of the court they
returned a special verdict, which, omitting the caption, is
as follows:
"We
the jury, having been instructed to return a special verdict
in said cause, find the facts proven as follows:
"1st.
The defendant, the Lake Shore and Michigan Southern Railway
Company, is, and for the last ten years has been, all the
time, a railroad corporation duly organized and existing
under and by virtue of the laws of the State of Indiana, and
during all of said time said defendant has owned and operated
a line of railroad...
