New York, C. & St. L.R. Co. v. Hamlin

• Decision Date: 08 January 1908
• Docket Number: No. 20,855.,20,855.
• Citation: 83 N.E. 343,170 Ind. 20
• Court: Indiana Supreme Court
• Parties: NEW YORK, C. & ST. L. R. CO. v. HAMLIN.

170 Ind. 20

83 N.E. 343

NEW YORK, C. & ST. L. R. CO.

v.HAMLIN.

No. 20,855.

Supreme Court of Indiana.

Jan. 8, 1908.

Appeal from Superior Court, Porter County; Harry B. Tuthill, Judge.

Action by Fred O. Hamlin against the New York, Chicago & St. Louis Railroad Company. From a judgment for plaintiff, defendant appeals. Case transferred from Appellate Court under Acts 1901, p. 565, c. 247. Reversed.

Modified opinion for former opinion, see 79 N. E. 1040.

Olds & Doughman, for appellant. Marion E. Barnhart, V. S. Reiter, and L. L. Bomberger, for appellee.

HADLEY, J.

Appellant appeals from a judgment rendered in favor of appellee for personal injuries claimed to have been caused by the former's negligence. The accident happened at Stoney Island, a large distributing switchyard of appellant near the city of Chicago, in the early morning of July 1, 1903. The plaintiff, a practical switchman of 16 years' experience, was employed by appellant, and was acting as head switchman of a crew engaged at Stoney Island in breaking up trains as they arrived in the yard, and switching the cars to the various roads and tracks to which they severally belonged. The plaintiff, being the head switchman, had control over the movements of the engine, and it was the duty of the engineer (which was faithfully performed) to respond to whatever signals the plaintiff communicated. About 4 o'clock on the morning of July 1, 1903, No. 35, a mixed train of about 20 cars, arrived at Stoney Island from Buffalo, and the crew to which the plaintiff belonged was set to work distributing it. Prior to breaking up the train, however, competent car inspectors examined the train, and one Medland, an inspector, testified that he discovered on car No. 3847, Duluth, South Shore & Atlantic, from Buffalo, a projecting nail, to wit, a bolt went through the end of a brake beam which hung about 15 inches above the surface of the track, and immediately over the rail, and rested about 6 inches back of the end of the car, which bolt passed through the brake head and projected outward toward the end of the car about 1 1/2 inches. Through the projecting part of the bolt was a slot immediately outside the nut, and through the slot, as ordinarily constructed, should have been inserted a soft iron split key, turned backward around the bolt to prevent the escape of the nut. The soft iron key was missing, and in its stead a nail had been forced through the slot, and the point turned outward toward the end of the car, and thus projected about 1 inch further than the bolt. Two cars had been thrown out of the train on the main track and left standing. A little later the engine, pushing five cars, under the direction of the plaintiff, started down the track to pick up the two standing cars. The cars were backing toward the west. The plaintiff was riding on the side ladder near the northwest corner of the advanced car, which was car No. 3847 containing the projecting nail. It was equipped with the Trojan coupler. The standing car had a coupler that coupled in the same way. The cars, by the devices, coupled by opening the knuckle of either one of the cars. It was not necessary to open both. The manner of coupling by these devices was by raising with the left hand a lever located under the northwest corner of the car the plaintiff was riding to a holding notch that would support the lever. The lever would thus release the knuckle, and then the coupling might possibly be accomplished by reaching round the end of the moving car and with the right hand open the knuckle of the moving car, then clear the track, and let the cars collide and make the coupling; or the coupling might have also been made by going in advance of the moving car to the standing car and to the other side of the track, to the southeast corner of the standing car, lifting the lever to the notch, opening the knuckle, then recross the track to the north side (the engineer's side) to give the necessary signals; or the coupling might be made by stopping the moving car until the knuckle in it, or in the standing car, could be opened, and then signaling a collision of the cars. On the occasion of the accident the plaintiff rode the moving car till it drew near to the standing car. He then signaled the engineer to slow up, which he did, to the rate of two miles an hour. The plaintiff then lowered himself from the ladder, and lifted the brake lever with his left hand. The notch was out of repair and would not hold the lever, so holding the lever in his hand, he stepped in front of the moving car, stepped over the rail, first with his right foot, extending his right hand, and laying it upon the coupler to open the knuckle, and as he carried his left foot over the rail something caught him on the inside of the left leg midway between the foot and the knee, which threw him to the track between the rails, and the forward trucks passed over him, inflicting the injuries for which he sues. The presence and position of the nail was not reported to the company, was not repaired, and no notice thereof was given to the plaintiff and other employés whose duty it was to handle and manage the train. The plaintiff had no knowledge of the nail, and could not testify that it was the nail that caught him and caused him to fall on the railroad track. The substance of these facts was averred in two paragraphs of complaint. A demurrer to each paragraph for insufficiency of facts was overruled. There was an answer of general denial, verdict for appellee, and answers to interrogatories. A motion for judgment on the answers to interrogatories was overruled, as was also appellant's motion for a new trial. An assignment of error is made on all adverse rulings. Was the complaint sufficient against the demurrers?

The negligence alleged in the first paragraph was that the defendant hauled from Buffalo a certain defective and dangerous car, No. 3847, belonging to the Duluth, South Shore & Atlantic Company. The defect is described, and then it is averred “that a large nail was negligently placed and maintained on said brake beam in a bent condition that projected and extended outward from the brake beam toward the end of the car a distance of about 4 inches, and was about 18 inches above the surface of the ground, and in such a position as to come in contact with the person and clothing of the switchman engaged in coupling that end of said car. It is then alleged that the plaintiff had no knowledge of the defective and dangerous condition in time to avoid it, and the defendant negligently failed to give him notice thereof, although the defendant might have discovered it upon reasonable inspection, by reason whereby the defendant negligently failed to furnish the plaintiff with a safe place to work and with safe appliances. The second paragraph is like the first, except it is averred that immediately upon its arrival in the yard at Stoney Island the defendant inspected the car, and found the defective condition described, and knowing of said condition the defendant negligently failed to repair, though it had plenty of time, and wholly failed to give the plaintiff notice, or warning thereof. The objection presented in these paragraphs by appellant's counsel is that neither states sufficient facts to constitute negligence in appellant that appears to be the direct or proximate cause of the plaintiff's injuries. In a nutshell, the first paragraph appears to be based upon a failure to inspect a foreign car, and the second paragraph, upon a failure to repair, or to give the plaintiff notice of the defect. When a railroad company in the general conduct of its business receives a foreign car to be transported over its lines, or handled by its employés in its general switchyards, it must under all circumstances exercise such reasonable care as the time, place, and exigencies of business will permit to inspect such car to ascertain if it is in a reasonably safe condition, and if it is found to be out of repair, unfit, or unsafe for the business for which it is being employed, to repair such car to a reasonably safe condition, or to notify those of its employés who may be called upon to handle it of the danger or defect. Railway Co. v. Bates, 146 Ind. 564, 45 N. E. 108, and cases cited. So in this case appellee owed the appellant, as one of its switchmen, the duty of giving car No. 3847, from Buffalo, a reasonable inspection, which it is averred in the first paragraph of the complaint it did not do, and furthermore it was a duty owing to the plaintiff to mend any discovered defect, or dangerous condition, or to notify the plaintiff of the existence thereof, all of which, it is alleged in the second paragraph the defendant failed to do. Neither paragraph of the complaint is subject to the general objection stated, and no special objection to either paragraph being pointed out, we hold both paragraphs sufficient.

Was appellant entitled to judgment upon the answer of the jury to interrogatories? The answers referred to are to the following effect: The plaintiff was injured while attempting to make a coupling between car No. 3847, “D., S. S. & A.,” and another car standing on the track (3). Car 3847 was not in good repair (4), on account of a nail projecting from a bolt in the brake beam (4 1/2), which brake beam extended within six inches of the forward end of the car (5). Immediately before his injuries the plaintiff was riding on the outside ladder of the forward end of a short train that was backing down to couple onto a car standing on the track (6). When injured the plaintiff was in front of the moving car, right hand on knuckle, and left hand hold of lever trying to open knuckle when he fell (9). The car was moving two miles per hour (10). When the plaintiff jumped from the ladder to the ground and entered in front of the car, the bolt in the brake beam was not in his full view (12). But the plaintiff might have seen the end of the brake...