Pennsylvania Co. v. McCaffery

• Decision Date: 20 September 1894
• Citation: 38 N.E. 67,139 Ind. 430
• Parties: PENNSYLVANIA CO. v. McCAFFERY.
• Court: Indiana Supreme Court

139 Ind. 430

38 N.E. 67

PENNSYLVANIA CO.

v.McCAFFERY.¹

Supreme Court of Indiana.

Sept. 20, 1894.

Appeal from circuit court, Clark county; C. P. Ferguson, Judge.

Action by Martha E. McCaffery, administratrix, against the Pennsylvania Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

S. Stansifer, for appellant. A. C. Harris, J. H. Stotsenburg and Evan B. Stotsenburg, for appellee.

DAILEY, J.

The facts in this case, as shown by the record, are these: The appellant, as lessee, operates the Jeffersonville, Madison & New Albany Railway. It runs a passenger train from Louisville, via Jeffersonville, to New Albany, called the “Dinkey.” The crew consists of a conductor, brakeman, engineer, and fireman. They go on duty at 5 a. m. each day, and, as appears by the company's card, remain on duty continuously until midnight. On April 28, 1885, the crew, consisting of Bush, conductor; Brooks, brakeman; Parr, engineer; and Eisle, fireman,-took the dinkey train to run from 5 a. m. until midnight. There were fourteen stops each way. No provision was made for the men to get their meals. The crew lived in New Albany. They could not work 19 consecutive hours without food. The fireman's little daughter brought his meals in a pail, which he ate on the engine. It is not shown how Brooks, the brakeman, lived, as the company had him in the service on the road, so that he was not present at the trial. On the afternoon of April 28, 1885, appellee's intestate, Richard McCaffery, the section boss, was at work, with four laborers, surfacing the track in the city of New Albany. His hand car was standing in an alley immediately north of the track, and a few squares east of the State street station, the western terminus of this line, at which passengers were received and delivered. Bush, the conductor, and Parr, the engineer, lived several squares east of the station. As the train came from Louisville to New Albany, due at 5:40 p. m., the engineer and conductor left the train, and ran to their homes, to eat their suppers, while the fireman and brakeman were left in charge of the train, to take the passengers on to the station. As soon as the train, containing three cars, pulled by McCaffery and his men, they gathered up their tools to quit work for the day, and began to put their hand car on the track, to run eastwardly to the hand-car house, about one mile distant. McCaffery resided near by there, on Fifteenth street. The AirLine Company at that time used the Jeffersonville, Madison & Indianapolis track from New Albany into Louisville, and an eastbound train would soon pass. To allow this, it became necessary for the dinkey train to run into a switch, the east end or head of which was 190 feet east of the alley wherein McCaffery's hand car stood. Brooks, the brakeman, got off, and ran along to open the switch; but Eisle, the fireman, ran over the head of the switch before stopping the train. He says: “I lost the air, and ran over the switch.” There was then no one of the crew on the train but the fireman. Brooks was on the ground to open the switch when he could, and the engineer and conductor were eating hasty suppers at their respective homes. McKenna, the superintendent of the Pennsylvania Company,-the officer having the operating of this train in charge,-knew that the conductor and engineer, driven by hunger, habitually left the train to get something to eat, as was done this afternoon. Parr, the engineer, testifies: “That was the only way I had to get something to eat, unless it was brought to me in a basket.” A special policeman named Shay, in the employ of the company, patrolling the track in New Albany, was required to get on the train to assist the passengers off; but he had no authority to take command of the train, and did not on this occasion. The train was thus left, by permission of the company, with no one to operate it, except the fireman. No bell was rung, or other signal given of the backward movement of the train by Eisle. He could not watch, or ring the bell, as he was occupied in handling the engine. It was shown by the appellant that on previous occasions they sometimes let little boys climb on the engine and ring the bell, when the engineer was off securing something to eat, but it was not so in this instance. There was no one to stand on the rear platform, as there should have been, or otherwise to warn the decedent and his men that the train must move backward at once. Eisle reversed the engine, and put on steam, and moved back, just as McCaffery and his men were putting the hand car, which weighed 700 pounds, on the track. They put it on in the usual manner; that is, they carried it on the track, and placed it at right angles therewith, and then lifted it quarter round, so as to put the wheels on the rails. As they were so engaged the train backed silently down upon them. Perry Quirk, one of the section hands, tells the rest of the story in this artless way: “It was just six o'clock, and we were putting on the hand car at the alley. We had hold of her, and were trying to put her on, and I seen the train coming up, and I said, ‘Boys, we cannot make it.’ We were looking towards the train, and we could see the car coming down; and I said, ‘We cannot make it,’ and we dropped the car, and stepped out. I hallooed. I said, ‘Boys, we cannot make it.’ I seen McCaffery stepping back from the car, and the next I saw him fall. That is all.” It is shown that the hand car was shoved forward by the collision between it and the train, and the deceased was under the hand car when the train stopped. William Wren says: “When the train struck the hand car they had got the wheels parallel with the rails, with two wheels inside of the track, and two outside. I saw him fall, but did not see him struck. He fell across the rail, * * * and the car struck him and drug him down, but did not pass over his body. It drug him ten feet. It rather slipped upon him, and shoved him along.” He was mortally hurt, and in intense pain and agony. From the injuries so received, he afterwards died. They brought a train down, and carried him into the cars to take him home. While aboard the train, Shay, the special policeman, sent two or three men into the car to obtain admissions from him. Among these was a constable named Graham, who was a bystander. Graham said, “I do not think you are badly hurt.” The suffering man answered that he did not think he could live. Graham, then, in the presence of Conductor Bush, inquired of him as to who was to blame, saying: “Do you blame anybody?” To which he answered: “I don't. It was all my fault. I do not blame any of the boys at all for this.” “He said he wanted to save the hand car, to keep it from being mashed up. He was in fear of being discharged for neglecting his own duty.” Parr went to see him the next morning. McCaffery was asleep, and under the influence of morphine. After a while he roused up, and Parr, who seemed to have been there to talk to him, says that in the course of a conversation he said to McCaffery, “I am mighty sorry for it,” to which he replied, “I don't blame you at all.” The widow, who was present on this occasion, denies that any such statement was made. After Bush, the conductor, had returned from supper, and talked with McCaffery and others on the car, he sent a dispatch to the superintendent which, on cross-examination, he admitted was substantially as follows (being an accident report filled up): “New Albany, Station, April 28th, 1885. To Superintendent: First section 27. Train northward. Engine 822. Engineer, John Parr. Conductor, C. G. Bush. Place and time, 5:40 p. m.; main track; alley between Bank and Pearl. What caused it? Putting hand car on track, and backed up, and putting hand car out of way; got caught between hand car and track. Name, Richard McCaffery. Flesh wound on right side. Two ribs on side, three cars next to engine. Nature accident: Putting car on track when train backed up; tried to get away, fell, and train pushed hand car on him. (Signed) C. G. Bush.” This statement was made just after the accident, when the transaction, as observed, was fresh in the minds of the actors and bystanders, and is the only one in the record showing clearly how McCaffery happened to receive his injuries. It is true, Bush was not an eyewitness to what trans. pired. It is likewise true that it was made after Bush had seen Brooks, the brakeman, who was standing at the switch when the event happened. As the appellant failed to bring him, as a witness, to the trial, although in its employ, running between Louisville and Indianapolis, at the time, on a passenger train, it is fair to infer that he saw the accident, and would have testified to the facts contained in the dispatch herein set forth.

On these facts, we cannot say that McCaffery was incautious. A trusty servant, he made an effort to save the hand car then in his care. Seeing they could not, the crew abandoned it to save their lives, when, in the language of the dispatch, he “tried to get away, fell, and the train pushed the hand car on him.” This clearly establishes that he was not guilty of negligently permitting himself to be run over. In a sudden crisis, coming on one by surprise, it is not expected that a person in the midst of such peril will exercise that deliberate judgment which knowledge and proper time for reflection afford. Moved by a high sense of duty, to serve his master, the servant may be impelled to an effort to save its property when a stranger would escape. But the most prudent and active men may accidentally fall, especially when the mind and sight are turned to an unexpected danger, and no opportunity is given for care where or how to stop. If one acts naturally in a case of sudden and instant peril put on him by another, and is injured, he is not guilty of negligence, although afterwards, out of the presence of danger, with time to reflect, and in the light of all...