Pittsburgh, C., C. & St. L. Ry. Co. v. Peck

Decision Date28 November 1905
Docket NumberNo. 20,593.,20,593.
Citation165 Ind. 537,76 N.E. 163
PartiesPITTSBURGH, C., C. & ST. L. RY. CO. v. PECK.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Cass County; J. M. Rabb, Special Judge.

Action by Charles M. Peck against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court, under Burns' Ann. St. 1901, § 1337u. Reversed.

G. E. Ross, for appellant. Kistler & Kistler, for appellee.

JORDAN, J.

Appellee, on January 10, 1903, by a complaint in four paragraphs, instituted this action to recover for personal injuries sustained by him on account of the alleged negligence of appellant railway company. The first and third paragraphs of the complaint were dismissed, and the cause tried on the second and fourth. A demurrer for insufficiency of facts was overruled to each of the latter paragraphs. On the issues joined the case was tried by a jury, and a verdict returned awarding appellee damages in the sum of $2,400. The court, over appellant's motion for a new trial, rendered judgment upon the verdict. The errors assigned are to the effect that the court erred in overruling appellant's demurrer to each of the aforesaid paragraphs of the complaint upon which the cause was tried, and in denying its motion for a new trial.

It appears to be conceded by the parties that both the second and fourth paragraphs are based on the fourth subdivision of section 7083, Burns' Ann. St. 1901; the same being section 1 of the employers' liability act of 1893 (Laws 1893, p. 294, c. 130), which provides that “Every railroad or other corporation *** operating in this state shall be liable for damages for personal injury suffered by an employé while in its service, the employé so injured being in the exercise of due care and diligence in the following cases: *** Fourth: Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any *** locomotive engine or train upon a railway.” The fourth paragraph of the complaint alleges that the defendant, appellant herein, is a corporation organized under the laws of the state of Indiana and owns and operates a steam railroad within and through said state, and within and through the city of Logansport, therein. It is alleged that in the latter city, on March 8, 1902, and long prior thereto, the defendant as a part of its railway system owned and operated a railway yard consisting of various switches, tracks, and spurs, extending in an easterly direction from a point near Berkly and Canal streets to a point near Seventeenth street in said city. On said day the plaintiff, appellee herein, was in the employé of the defendant as a switchman engaged with others of its employés in switching cars, making up and separating trains of cars, and in discharging duties usually required of a switchman in railway yards. There was used by the defendant for the purpose of switching and making up trains, etc., a locomotive engine which was in charge of a locomotive engineer who was an employé of the defendant. This engine was operated in the yards and on the tracks of the company. About 8 o'clock on the night of said day this engine in charge of said engineer was connected or attached to a cut of cars which were standing in said yard, and said cut was pulled in a westerly direction out on to one of the main tracks of the defendant's road for the purpose of clearing a switch which was connected with another track parallel thereto. The cut of cars was drawn past said switch connection and there stopped, “when and where,” as stated or alleged by the pleader, “it became the duty of said locomotive engineer not to move or propel said locomotive and cars nor to back the same until signaled to do so by this plaintiff, or the conductor, an employé of said company in charge and conducting the switching of said cars.” The pleading then alleges that the plaintiff rode on the cut of cars in question down to the switch and alighted therefrom, and that after the cars had passed the switch he then “carefully and prudently started to cross said track, and while doing so his foot caught within the equipment of said switch connection and road structure and became fastened and held him secure; that he immediately tried to release himself from such retention, using due care and diligence in that respect, but was unable to do so before the injury hereinafter complained of. That while in such condition, not being able to extricate himself and get off of said track, and without any signal to do so from this plaintiff or other person whose duty it was to signal such engineer, and in total disregard of his duty in that respect, said engineer in charge of said locomotive engine, as...

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