Payne, Director General of Railroads v. Shelton

• Decision Date: 31 March 1922
• Docket Number: 11,272
• Parties: PAYNE, DIRECTOR GENERAL OF RAILROADS, AGENT, v. SHELTON
• Court: Indiana Appellate Court

134 N.E. 918

78 Ind.App. 123

PAYNE, DIRECTOR GENERAL OF RAILROADS, AGENT, v. SHELTON

No. 11,272

Court of Appeals of Indiana

March 31, 1922

From Jennings Circuit Court; John R. Carney, Judge.

Action by Earl Shelton against John Barton Payne, Director General of Railroads, Agent. From a judgment for plaintiff, the defendant appeals.

Reversed.

Morrison R. Waite, William A. Eggers, McMullen & McMullen and Joseph Verbarg, for appellant.

James H. Connelley, Sam A. Connelley and John Clerkin, for appellee.

NICHOLS J. Dausman, C. J., and Remy, J., concur in result.

OPINION

NICHOLS, J.

Appellee was a section hand on the Baltimore and Ohio Southwestern Railroad, then being operated by the United States Government. The railroad company was originally a party defendant, but the cause was finally tried on the amended complaint, with appellant as the sole party defendant.

There was a motion to make the amended complaint more specific which was overruled; a demurrer to the amended complaint which was overruled, and a trial by jury which resulted in a verdict of $ 1,500 for appellee, on which after appellant's motion for a new trial was overruled, judgment was rendered.

Appellant assigns as error: (1) Overruling the motion to make the amended complaint more specific; (2) overruling the demurrer to the amended complaint; (3) overruling the motion for a new trial.

Appellee contends that no question is presented as to the court's action in overruling appellant's demurrer to the complaint for the reason that the record shows no exceptions for appellant. After the court's ruling the record shows, "to which ruling the plaintiff excepts." It is apparent that the plaintiff did not except for the ruling was in his favor. We regard the use of the word "plaintiff" instead of "defendant" as an inadvertence of the clerk with which appellant is not to be charged. See Price v. Hart (1922), 77 Ind.App. 653, 134 N.E. 672.

We only need to decide as to the second error assigned. The substance of the complaint, so far as here involved, is that on September 20, 1919, appellee was in the employ of said railroad company as a section hand, and was employed together with other employes of said company under the direction of their several foremen and engaged in unloading gravel from cars comprising a work train. Said train consisted of cars loaded with gravel and drawn by an engine, and after appellee together with other employes, had assisted in unloading a part of said cars of gravel, said engine was attached to the remaining gravel cars and appellee with other employes, was ordered and directed to board said train and assist in the unloading of gravel from said cars which were to be hauled to a point further east on said railroad. Appellee when so ordered and directed by his foreman took his position between two of said gravel cars by the side of his foreman, sitting on the sill of one car and resting his feet on the sill of the car attached in front of him. The engineer proceeded to back said train east, the locomotive of said train facing west. After said train had proceeded for some distance the cars between which appellee was riding were slowed down; immediately thereafter said company who was operating said train, suddenly and without any warning to appellee carelessly and negligently started said train with a violent jerk, bumping the cars together between which appellee was riding, with great force and violence, causing the slack between said cars to be run up suddenly and violently, by reason of which appellee's right leg was caught between said cars, causing it to be shoved, pushed and jammed in a strained position against his body with great force and violence, thereby severely injuring him.

Appellee says that the statement of facts pleaded in the amended complaint shows it was necessary to warn appellee of the sudden starting and jerking of the train but we are not in harmony with this contention. On the contrary, we are clear that there was no such duty under the facts averred. Appellant in its motion to make more specific asked that appellee be required to state specifically the facts showing the negligence in the starting of the train with a violent jerk. As such motion was overruled the ruling is deemed a decision by the trial court, procured by and binding upon the appellee, adjudging that all the facts known to and relied on by the appellee tending to support the general averments aforesaid were already stated in this paragraph of complaint. Terre Haute, etc., Traction Co. v. Phillips (1921), 191 Ind. 374, 132 N.E. 740; Lake Erie, etc., R Co. v....