Louisville v. Berkey

• Decision Date: 31 October 1893
• Citation: 136 Ind. 181,35 N.E. 3
• Court: Indiana Supreme Court
• Parties: LOUISVILLE, N. A. & C. RY. CO. v. BERKEY.

136 Ind. 181

35 N.E. 3

LOUISVILLE, N. A. & C. RY. CO.

v.BERKEY.¹

Supreme Court of Indiana.

Oct. 31, 1893.

Appeal from circuit court, Orange county; R. Applewhite, Special Judge.

Action by James B. Berkey, administrator of Melville Hays, deceased, against the Louisville, New Albany & Chicago Railway Company, to recover damages for the death of decedent. Judgment for plaintiff for $4,500. Defendant appeals. Affirmed.

E. C. Field and W. S. Kinnan, for appellant. Mitchell & Mitchell and Zaring & Hottel, for appellee.

DAILEY, J.

This case rests, substantially, on the following facts: The appellee's intestate, Hays, was in appellant's employ as a brakeman. On the 16th day of August, 1890, a train crew consisting of John Smith, engineer; a fireman, whose name is not furnished us; David Welch, conductor; Granville Hays and Melville Hays, brakemen,-took a through freight train of appellant, at Bloomington, Ind., to run it to New Albany. At the station of Harrodsburg, about 12 miles south of Bloomington, this train was laid out for three or four hours on a siding; waiting, under orders, for other trains to pass. After running south from said station a short distance, probably one or two train lengths, which was about 12 o'clock at night, the engine attached to and hauling the train of cars broke loose where the engine tank was coupled to the car next thereto. The pin broke, which was used for making the coupling. Melville Hays was the front brakeman, and was at his place on the train, and near the end thereof where the train separated. By the severing of the train, the deceased was thrown to the ground with great force, run over by the appellant's cars, and thereby mashed, mangled, and bruised, from which injuries he instantly died. The cause of Hays' injury and death is set out in the special verdict returned by the jury, as follows: “(7) That the separation and breaking loose of the engine and tender from the remainder of said freight train was the result of the carelessness and negligence of the defendant in this, to wit: the defendant had carelessly and negligently furnished and used in the coupling together of said train defective coupling apparatus, namely, they furnished and used in the coupling of said engine and tender on the car immediately behind it a coupling pin which was made out of an inferior grade of iron, and which had flaws and defects therein that rendered it insufficient for the said purpose for which it was used; and the defendant's said car, to which said engine and tender was coupled and attached, had a defective drawbar, through which said coupling pin fastening the engine thereto passed, the hole or slot in which and through which said pin passed being so worn and enlarged that it permitted said pin to turn therein, and allow said engine to pull against the flat side thereof. (8) That said coupling pin used in said defective coupling apparatus was flat, and when properly placed and held in the slot of the drawbar, through which it passed, the force and power of the engine, and the weight of the train, pulled against the flat side of the pin, and that the strength of said pin when in such position was almost double the flat side thereof. (9) That the inferior grade of the iron out of which said coupling pin was made, and the defects and flaws therein, and the said defective condition of the drawbar of said car, could have been discovered by the defendant, upon a proper examination by it of its coupling apparatus, and defendant had the time and opportunity to make such examination. (10) That said accident of the separation of said engine from the remainder of said freight train, which resulted in the death of said plaintiff's decedent, was wholly and directly the result of said defective coupling apparatus of said defendant's said freight train. (11) That the plaintiff's decedent had been employed as a brakeman only twelve days prior to said accident, and was inexperienced in railroading, and could not, in the nighttime, have discovered said defective condition of said coupling apparatus of the defendant's said freight train, and said decedent knew nothing of the defective condition thereof. (12) That plaintiff's decedent in no way contributed to said accident, or his death resulting therefrom, but was wholly without fault or negligence on his part.” The special verdict, it will be observed, finds and specifies three separate and distinct acts of negligence against appellant: (1) It furnished and used a coupling pin made out of an inferior grade of iron; (2) it furnished and used a coupling pin having flaws and defects which rendered it insufficient; (3) the tender to which the car was coupled had a defective drawbar, in that it was so worn and enlarged that the coupling pin would turn therein, allowing the strain to fall upon the flat side of the pin. In this case there was a judgment rendered on the special verdict for appellee in the sum of $4,500.

The following errors are assigned: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in overruling the demurrer to the first and second paragraphs of the complaint, and each of them; (3) the court erred in overruling the motion for a venire de novo; (4) the court erred in overruling appellant's motion for judgment in its favor on the special verdict; (5) the court erred in overruling the motion for a new trial.

Counsel, in their argument, have discussed the 1st, 2d, and 5th; and, under the well-established rule of this court, the assignments of error as to the 2d and 3d will be considered as waived. Burk v. Hill, 55 Ind. 419;Telegraph Co. v. Ferris, 103 Ind. 91, 2 N. E. Rep. 240.

Under the last assignment of error, counsel's argument in this cause is directed mainly to the seventh reason for a new trial, viz. “because the special verdict is not sustained by the evidence.” The special verdict of the jury, and the evidence in support of it, are in the record. We have carefully examined the transcript, and find that the facts set out therein are supported by a number of witnesses, who testify that the coupling pin was made out of an inferior grade of metal, and that it contained flaws and defects, and was very much worn, and smaller than the regulation size. There is also evidence tending to show that when the drawbar was in good order, and not worn, it would not allow the coupling pin to turn, and draw against the flat side, and that the pin could not be placed in the slot of the drawbar but the one way, if the machinery were in condition, and the drawbar not worn or enlarged. This would indicate that the cavity or slot through the bar was so worn and increased in dimensions as to permit the pin to turn therein. Appellant recognizes the well-settled rule that if there is any evidence that tends to support the finding of the court or the verdict of the jury, although the preponderance of the evidence may seem to be against it, this court will not reverse the judgment on the evidence. Lane v. Brown, 22 Ind. 239;Shank v. State, 25 Ind. 207; Railroad Co. v. Taffe, 37 Ind. 361; Railroad Co. v. Tipton, 101 Ind. 197;Railway Co. v. Savage, 110 Ind. 156, 9 N. E. Rep. 85; Isler v. Bland, 117 Ind. 457, 20 N. E. Rep. 303.

The competency of the line of testimony introduced by appellee, relating to the quality and condition of the coupling pin which broke and occasioned the death of the decedent, was challenged below, and is questioned here on the ground-First, that the witnesses did not qualify themselves to so testify; and, secondly, that the inquiry was not the subject-matter of expert testimony, and hence was incompetent; that the jury can tell as much about whether a piece of iron has a flaw in it as they could possibly do. “The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of the nature of a science, art, or trade as to require a previous habit of experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in the particular science, art, or trade to which the question relates are admissible in evidence.” Rog. Exp. Test. § 9, pp. 19, 20. The same author says in section 120, pp. 277, 278: “From what has been stated, it appears that the opinions of persons skilled in any trade or calling are experts as to matters of technical skill relating to their trade or calling, and their testimony may be received as such in evidence. In the preceding section of this chapter, attention has been called to the application which has been made of this principle in respect to certain trades; but the principle is equally applicable in all trades and callings, when the question at issue is technical, and not within the common experience of men in general. Thus, the * * * opinions of persons having a peculiar and special knowledge of iron, upon the question of the quality and strength of iron, the breaking of which caused the accident.” It is also the rule “that any witness, not an expert, who knows the facts personally, may give an opinion in a matter requiring skill, stating also the facts upon which he bases the opinion.” City of Indianapolis v. Huffer, 30 Ind. 237. The testimony so earnestly objected to in this case is that of a series of witnesses, as to the inferior quality of the iron in the coupling pin, and its worn and flawy condition. Most of this testimony was elicited from witnesses who were experienced, as blacksmiths, in handling and working all the various grades of iron and steel for a series of years,...