New York, Chicago and St. Louis Railroad Company v. Croy
| Decision Date | 29 April 1920 |
| Docket Number | 23,371 |
| Parties | New York, Chicago and St. Louis Railroad Company v. Croy |
| Court | Indiana Supreme Court |
From DeKalb Circuit Court; Dan M. Link, Judge.
Action by Albert M. Croy against the New York, Chicago and St. Louis Railroad Company. From a judgment for plaintiff, the defendant appeals.
Reversed.
Walter Olds, Hoffman & Shearer and H. D. Howe, for appellant.
John H Aiken and Jesse Vickery, for appellee.
Appellee recovered a judgment in the trial court for damages in the sum of $ 12,500 for personal injuries sustained by him while he was in the employ of appellant as a conductor of a train running between Fort Wayne, Indiana, and Bellevue, in the State of Ohio. The action was brought under the provisions of the federal Employers' Liability Act § 8657 et seq. U.S. Comp. Stat. 1916, and was predicated on the alleged negligence of appellant. A trial by jury resulted in a verdict in favor of appellee, and the judgment followed the verdict.
Appellant seeks to reverse the judgment on eight separate assignments of error, the last of which is that the trial court erred in overruling appellant's motion for a new trial. In view of the conclusion reached, the other errors assigned need not be discussed.
As disclosed by the record, appellant was injured at Oakwood, in the State of Ohio, at about 10:30 p. m. on January 28, 1914. He was at the time employed by appellant as a freight conductor and was in charge of a train which had left Fort Wayne, Indiana, at about six o'clock on that evening for Bellevue, Ohio, and which had proceeded as far as Oakwood, at which place appellee received the injury for which he seeks compensation in this action. Just west of the station at Oakwood, the railroad crosses the Auglaize river; and, from the river to the station and telegraph office and beyond the track of appellant railroad company was constructed on a high embankment. At a point about thirty rods west of the telegraph office, a street or highway of the village of Oakwood intersected the railway embankment, and the railroad track was carried over and across the street on a trestle or bridge about fourteen feet above the surface of the street. After the train crossed the river it came to a stop on the embankment with the caboose west of the street and subway just described; and, when appellee got out of the caboose he observed a signal at the telegraph office indicating that there were orders for his train at the office. He then started to go to the telegraph office to receive his orders, carrying a lantern and walking along the south side of the train on the top of the embankment. While he was so doing, the train started to move, and he started to run; and, when he reached the subway, he fell from the embankment into the street below and was injured.
The complaint alleges that appellant negligently omitted three precautions that a person of ordinary prudence would have adopted in view of conditions and circumstances: First, that it negligently failed and omitted to erect and maintain barriers at the subway in such a manner as to prevent any of its trainmen while passing along the side of a train on top of such embankment from falling into the street below; second, in failing to maintain lights at the subway in the nighttime, to indicate its location and to enable its trainmen to see the subway as they approached it on top of the embankment; and, third, failing to erect and maintain a suitable walk and railing across the subway, at the side of its tracks and on a level with the embankment so as to enable its trainmen to pass over the subway and to avoid danger of their falling from the embankment into the street beneath.
For the purpose of proving that appellant was negligent in failing to construct a foot-bridge alongside of the bridge or trestle, appellee introduced in evidence an order of the Public Utilities Commission of Ohio, made and entered on December 13, 1913, known as Administrative Order No. 9, the material part of which is as follows:
For the purpose of proving the authority of the Public Utilities Commission of Ohio to make and promulgate the order in question, appellee introduced in evidence, over the objection of appellant, certain sections of Vols. 102, 103 of the Session Laws of Ohio. The sections on which appellee relies as showing such authority are set out.
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