Pennsylvania R. Co. v. Hough
| Decision Date | 15 March 1928 |
| Docket Number | No. 12825.,12825. |
| Citation | 161 N.E. 705,88 Ind.App. 601 |
| Parties | PENNSYLVANIA R. CO. v. HOUGH. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Clark Circuit Court; James W. Fortune, Judge.
Action by Austin N. Hough against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.Rynerson, Bryer & Shinn, of Columbus, and Jonas G. Howard, of Jeffersonville, for appellant.
George H. Hester, of New Albany, and Louis B. Ewbank, of Indianapolis, for appellee.
Action under the Federal Employers' Liability Act (45 USCA §§ 51-59; Comp. St. §§ 8657-8665), by appellee, a switchman, to recover damages for alleged personal injuries sustained by him on June 12, 1924, on account of alleged negligence of appellant in maintaining a defective brake on a freight car.
Appellant says that the essential controversies as to questions of fact are whether the ratchet wheel of the brake was inefficient and defective in the respects claimed by appellee, and whether appellee was injured and has been damaged in the manner and to the extent claimed by him.
The court overruled the appellant's motion to make the amended complaint more specific, and his demurrer to the amended complaint, to each of which rulings appellant duly excepted.
A jury trial resulted in a verdict for appellee for $6,000, on which, after appellant's motion for a new trial was overruled, this appeal.
The errors relied upon for reversal are: (1) The court's action in overruling appellant's motion to make appellee's amended complaint more specific, (2) overruling appellant's demurrer to the complaint, and (3) overruling appellant's motion for a new trial.
It is averred in the complaint, in substance, that on June 12, 1924, appellee was employed by appellant, as a switchman, to work and assist in the transfer and switching of freight and freight cars, hauled by appellant, from points outside of the state of Kentucky, to its railroad yards which were located and maintained by appellant in the city of Louisville, Ky., and to make up trains of freight and freight cars, in its yards and at other points in Louisville, to be transferred and switched to Jeffersonville, and other points in Indiana and other states; that on said day appellee, under the terms of his said employment and while in the performance of his said duties as switchman, and while acting under the orders and directions of appellant, was engaged in connecting the cars of a train of freight cars, in Louisville, to be delivered to Jeffersonville, Ind.; that in making up said train, it became necessary and was the duty of appellee, under his employment, to cut out from the train, to be delivered to Jeffersonville, a certain freight car which was loaded with freight, and which had been hauled by the Louisville & Nashville Railroad Company from a point outside Kentucky to be delivered at a point in appellant's railroad yards to the consignee thereof; that said car, and the brake thereon, was, by reason of the carelessness and negligence of appellant out of repair, inefficient, and defective in this: That the ratchet attached to the staff of said brake was loose and would not hold, when the said brake was wound up and set; that when said freight car was so cut out from said train, appellee, as required by the duties of his employment, undertook to set said brake on said car, to prevent it from proceeding down a grade on said track on which it was located; that, for said purpose, he wound said brake and set the ratchet thereof to hold it in a set position; that when he was about to loosen his hold on the wheel of said brake, by reason of the defective and inefficient condition thereof and of the ratchet thereof, it suddenly and with great force unwound and flew back, striking appellee and throwing him with great force and violence against said car, thereby injuring him. That as a direct result of the inefficient and defective condition of said brake and the action thereof, and as a direct result of being struck against the side of said car, he suffered the fracture of one or more of the vertebræ of his spine, and his back and the muscles thereof were wrenched, bruised, and strained; that the said fracture has caused a large callous to form, which presses against and interferes with his spinal cord; that he has been thereby caused to suffer, still suffers, and will continue to suffer, great physical pain and mental anguish; that the use of his left leg has been materially reduced and injured; that said injuries are permanent; that he earned before his said injuries from $185 to $200 per month as wages; that he is permanently disabled from following his usual avocation as a switchman or earning wages as such; that he has been compelled to employ a physician for the treatment of his said injuries, at an expense of $200. He demands judgment for $20,000.
Appellant, contending that the court erred in overuling its motion to make the complaint more specific, says that the precise nature of the charge in the complaint that the ratchet was loose and would not hold is not so apparent as to apprise a person as to why the ratchet would not hold. It is averred in the complaint that the ratchet attached to the staff of the brake was loose and would not hold, and that after it was wound up, by reason of the defective and inefficient condition of the brake and ratchet, the brake unwound and flew back, thereby striking appellee.
It is expressly provided by section 2 of the Federal Safety Appliance Act, 8 Fed. Stat. Ann. (2d Ed.) 1190, that-
“On and after July 1, 1911, it shall be unlawful for any common carrier subject to the provisions of this act to haul, or permit to be hauled or used on its line any car subject to the provisions of this act not equipped with appliances provided for in this act, to wit: All cars must be equipped with secure sill steps and efficient hand brakes.” (45 USCA § 11; Comp. St. § 8618.)
[1][2] It thus appears that a railroad company is absolutely prohibited from hauling a car on its lines that is not fully equipped with efficient hand brakes, and it was unnecessary, as against the motion to make more specific, that the complaint should contain an averment as to why the brake was defective and inefficient. The only fact which appellee needed to aver in its complaint as to the condition of the brake was that it was defective and not efficient, and that while in such condition it was hauled or permitted to be hauled by appellant. There is no duty resting upon appellee to explain why the brake or ratchet would not hold, and though the car may have been originally equipped with a proper brake, appellee was not required to aver and to prove that appellant did not use reasonable care to keep it in such proper condition. As stated above, the duty resting upon appellant not to haul or permit the car to be hauled unless properly equipped with efficient hand brakes was absolute, regardless of any causes or reasons for it not being so equipped. Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 31 S. Ct. 612, 55 L. Ed. 582, 588;Chicago, etc., R. Co. v. Stierwalt (Ind. App.) 153 N. E. 807, 810.
The negligence averred in the complaint is the use of a car by appellant which was not properly equipped with an efficient hand brake. This was sufficient in this regard to inform appellant of the ground upon which the recovery was sought. Appellee was not required to do more. Pennsylvania R. Co. v. Winamac etc. Co. (Ind. App.) 154 N. E. 772. The court did not err in overruling appellant's motion to make the complaint more specific.
[3] Appellant's contention that the court erred in overruling its demurrer to the complaint is based upon substantially the same reasoning as presented by it in its contention that the court erred in overruling its motion to make more specific. It says that it does not appear by the complaint that appellant was guilty of any negligence in failing to equip the car with efficient brakes in the first instance, or in hauling it after the ratchet became loose and would not hold; that it does not appear that appellant was guilty of any negligence with reference to the ratchet becoming loose and failing to hold; that it does not aver in what the negligence of the defendant consisted; that the ratchet had been loose or...
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