Louisville v. Graham

• Decision Date: 27 May 1890
• Citation: 124 Ind. 89,24 N.E. 668
• Court: Indiana Supreme Court
• Parties: Louisville, N. A. & C. Ry. Co. v. Graham.

124 Ind. 89

24 N.E. 668

Louisville, N. A. & C. Ry. Co.

v.Graham.

Supreme Court of Indiana.

May 27, 1890.

Appeal from circuit court, Lawrence county; E. D. Pearson, Judge.

Geo. W. Friedley and E. C. Field, for appellant. Dunn & Dunn, for appellee.

Olds, J.

This is an action brought by the appellee against the appellant for negligently causing the death of appellee's decedent. The death of Miller occurred while repairing a tunnel on appellant's line of railroad in Greene county, Ind., by falling stone and dirt, and giving away of the timbers. There was a trial by the jury, and a special verdict returned, and judgment rendered on the special verdict in favor of the appellee. Numerous errors are assigned, but the only ones discussed are the overruling of appellant's demurrer to the first and second paragraphs of complaint, upon which paragraphs the trial was had, and the ruling of the court in overruling the appellant's motion for judgment on the special verdict.

It is contended that each paragraph of the complaint is bad, for the reason that it clearly appears from each of them that the work in which the deceased was engaged was necessarily hazardous, and that the deceased assumed the risk resulting from falling stone and dirt, and that, at least, the complaint does not show that the danger could not have been known to the deceased by the use of ordinary diligence on his part. The complaint is not subject to the objections urged to it. It alleges the insufficiency of the braces and the dangerous condition of the tunnel, and that it had long remained in such condition, and that the appellant knowingly allowed it to become and remain in such condition; that the defendant well knew the dangerous condition of the tunnel, and that its condition was not observable or visible by ordinary observation; that the appellant, without any fault whatever on the part of the deceased, and without any warning to him of the character, condition of the supports, braces, or walls, or of the danger at said point, ordered deceased to work at the place where he was injured and killed, and exposed him to the perils and hazards of falling timbers, stones, and dirt; that said deceased, at the time, was wholly free from fault on his part, and wholly ignorant of the condition, of the character, of said tunnel, rocks, dirt, and support, at said point and at said time. The allegations of the complaint, and each paragraph thereof, are clearly sufficient to avoid the objections urged against them.

The jury, in their special verdict, found the following facts: That the defendant (the appellant) was a duly-organized corporation, operating the road, etc.; that the said Alonzo Miller died by reason of the injuries received in the tunnel; that he left surviving him as his sole heir his wife, who had born to her a child, the issue of said marriage, the day following the burial of the deceased; that the said tunnel, on the line of defendant's road, in July, 1886, was badly out of repair by reason of the supports, which were of wood 10 by 12 inches square, and caps of the same size, breaking down and falling in, together with the dirt and stones above and about them, at the east end of said tunnel; that the defendant corporation left the management and control of the repairs then going on in said tunnel to one George Richards, a boss and foreman; that said George Richards, foreman, on the day of the killing of Alonzo Miller, and prior to that time, and during the month of July, 1886, was in the employ of the defendant, and, as defendant's foreman, superintending the repairs and work going on in said tunnel, ordering, directing, and giving instructions to the men therein employed and at work, and at the time of the killing of said Miller the said Richards, foreman, was the sole and only agent of the defendant in said tunnel exercising authority or having power over said Miller and said men; that said Richards had employed said Miller, deceased, and said men for the defendant; that, when said men were paid, Richards paid them for the defendant as defendant's agent and foreman, and that, when said men were discharged, Richards was the man who discharged them; that said Richards was knowingly permitted by the defendant to exercise full authority at said time over said men; that he had power to employ, oversee, and discharge men; that said Richards had been engaged on said road, and in and about said tunnel, for about nine years, and had charge for several years prior to the killing of said Miller of the bents, timbers, uprights, and supports in said tunnel, and was thoroughly familiar therewith, and was fully advised of the dangerous character of said supports, and of the sides and walls, of said tunnel, at, near, and about...