Lake Shore & Michigan Southern Railway Co. v. Peterson

• Decision Date: 20 December 1895
• Docket Number: 17,319
• Citation: 42 N.E. 480,144 Ind. 214
• Parties: Lake Shore and Michigan Southern Railway Co. v. Peterson, by Next Friend
• Court: Indiana Supreme Court

42 N.E. 480

144 Ind. 214

Lake Shore and Michigan Southern Railway Co. v. Peterson, by Next Friend

No. 17,319

Supreme Court of Indiana

December 20, 1895

Reported at: 144 Ind. 214 at 225.

From the Kosciusko Circuit Court.

The judgment is reversed, with instructions to sustain the motion for judgment non obstante veredicto.

Baker & Miller, for appellant.

H. C Dodge, for appellee.

OPINION

Hackney, J.

The appellee sued and recovered against the appellant for personal injuries alleged to have been sustained while being ejected from the appellant's freight train. The complaint disclosed no relation of passenger and carrier and alleged no right or authority in the appellee to go or remain upon the appellant's freight train, but proceeded upon the theory that the appellee was a trespasser. While so upon the train it was alleged, one George Harris, appellant's rear brakeman on said train, ordered appellee from said train while the same was running at a rate of speed rendering it dangerous for appellee to get off, and, when the appellee had hesitated and declined to get off, said brakeman pursued him with a bludgeon, cursed him and threatened to kill him; that, in fear of his life, and while excited, the appellee attempted to leave said moving train, when he slipped and fell to the ground and was run over by said train. The allegation of the complaint disclosing the theory that the brakeman, in what he did, was acting in the line of his employment was as follows: "That according to the rules and regulations in force at said time, the brakeman, George Harris, * * was constituted the servant and guardian of the said train * * and as such guardian of such train it was the duty of said George Harris to protect said train from danger during its trip, which it was then entered upon to Chicago, and from trespassers and from the presence of persons upon said train."

The theory of the complaint and that upon which the cause was tried and is here sought to be maintained is that the alleged duty of the brakeman was by the expressed general directions of the appellant.

Upon the trial the parties submitted to the jury certain interrogatories, which were answered and returned with a general verdict in favor of the appellee. The appellant moved for judgment in its favor, notwithstanding the general verdict, and the overruling of that motion presents one of the questions urged for reversal. Such of the interrogatories and answers as may possibly be relevant to the discussion are those of the appellee:

"First: Was Martin Peterson on top of a car of a train of defendant known as Third Number Forty-seven on October 25, 1891? Ans. Yes.

"Second: Is it not true that a brakeman by the name of George Harris ran after Martin Peterson while on top of train Third Number Forty-seven, with a club or stick uplifted and threatened said Peterson, and caused him to be frightened and fall off said train, in which fall said Peterson received the injuries mentioned in the complaint? Ans. Yes."

Those of the appellant:

"1. Was not plaintiff injured by falling from and being run over by west bound freight train No. 47, Third Section, on defendant's tracks in Elkhart west of Twelfth street? Ans. Yes.

"2. Was not A. C. Rossiter conductor in charge of train No. 47, 3d section, on the day of plaintiff's injury? Ans. Yes.

"3. Is not Twelfth street about five hundred feet west of Tenth street in said city of Elkhart? Ans. Yes.

"4. Was not said train 47, third section, standing east of Tenth street just before and at the time it started to pull out of Elkhart? Ans. Yes.

"5. Did not said train 47, third section, at the time of injury to said plaintiff, consist of an engine at the west end of said train, 36 freight cars, and a caboose at the east end of said train? Ans. Yes.

"8. Was not plaintiff catching on to and riding on said train without the permission of the defendant? Ans. Yes.

"9. Was not plaintiff trespassing on the tracks and train of defendant on the occasion of his injury? Ans. Yes.

"17. Was not the speed of said train at the time plaintiff fell off from four to six miles per hour? Ans. Yes.

"18. Did rear-brakeman Harris drive plaintiff from said train, brandishing a club and using the language set out in the complaint? Ans. Yes.

"19. At and before the time of plaintiff's injury, were not the following rules regarding brakemen in force, which had been promulgated by defendant:

"'of brakeman.

"'96. On entering the service of this company they each procure a copy of the general rules on the time table and of these rules, and make themselves acquainted with them. They must then present themselves for examination by the Superintendent, who is charged not to accept any person not vouched for as of good morals, sober and industrious. They will be required to sign an acknowledgment as specified in rule 35.

"'97. They are under immediate orders of the conductor or yardmaster with whom they serve, and must give him every assistance in the performance of his duty. They are to ask and receive from him all instructions necessary to their duties.

"'In general they are the servants and guardians of the train; to do all the work required during its trip and to protect it from danger.

"'98. They should observe at every stop the condition of the journals, wheels, brakes and other parts of the cars, or of their attachments, which are likely to become heated, or to get out of order; and they must report any heating or derangement at once to the conductor.

"'99. They are expected to be orderly, polite and attentive to duty; to try to serve the company well and to deserve promotion. Conductors are instructed to replace men who fall short of these requirements by the employment of others who will fulfill them.

"'100. They are expected to make themselves familiar with the duties of conductors as defined in the general rules of the time table and in this book.

"'101. When employed on a passenger train, except when engaged in other duties, they must remain near the door, standing; unless the seat nearest the door is vacant, when they may sit down, but not otherwise. They must give constant attention to keep the coaches as comfortable, well ventilated and free from dust as circumstances will allow.

"'102. They must provide themselves with warm clothing sufficient to endure the longest exposure in storms and in winter. When on duty they must always have fog signals--torpedoes--in their pockets ready for instant use.

"'103. In applying the brakes they must take care not to slide the wheels, for that destroys the wheels, yet does not retard the train so much as to let the wheels turn slowly in the brakes. In approaching places at which a stop is to be made, they should apply the brakes in time to stop, and releasing them before starting, without any signal from the whistle.

"'104. They are particularly charged to study and to understand rule 20 of the general rules upon the time table; for when a train breaks in two they can always prevent damage if they proceed exactly as therein directed, while they will be almost certain to cause destruction if they vary from the directions given.' Ans. Yes.

"20. At and before the time of plaintiff's injury, was rear-brakeman Harris directed by any officer or agent of defendant to put plaintiff off the train upon which he was riding? If so, by what officer or agent? Ans. No.

"21. At and before time of plaintiff's injury, was rear-brakeman Harris in any way directed or instructed by any officer or agent of defendant in regard to letting on, keeping off or ejecting persons from defendant's freight trains other than by rules set out in interrogatory 19? Ans. No."

The effect of the general verdict was to find that the brakeman was authorized by the company, or directed by some one in authority generally, to eject trespassers from the train. There is no question of the rule that the general verdict must stand until the answers to interrogatories are found to be in irreconcilable conflict with it. But counsel for the appellee insists that the answer which is urged to stand in conflict with the general verdict, that is to say, the answer to the nineteenth interrogatory consists of a mere statement of evidence and does not find the ultimate fact which, it is claimed, should have been that the act complained of was or was not within the scope of the brakeman's employment. The only rule of the company, found in the answer in question, which, by any possible construction, could be held to have given the brakeman express authority to eject trespassers was that numbered 97. It is that rule which is urged by the appellee as constituting express authority to eject trespassers. In our opinion the existence or non-existence of such authority must depend upon the proper construction of that rule, since we have learned from the answers to the twentieth and twenty-first interrogatories that the brakeman had no general or special directions, as to removing persons from the train, other than those given in the rules included in the answer to the nineteenth interrogatory.

The duties of brakemen as to the carrying of torpedoes, the application of brakes, what should be done in case the train should break in two, as to learning the rules concerning conductors' duties and the rules upon the time table, can have no bearing upon the question of the existence of express power to remove trespassers. Nor can the existence of other and undisclosed rules leave the question in doubt as to whether they contained express authority on the subject, for any such doubt is dispelled by the answers to the twentieth and twenty-first interrogatories. The nineteenth interrogatory and answer, in the light of what we have said are, as if the jury...