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

• Decision Date: 20 March 1903
• Citation: 66 N.E. 777
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. McNEIL.
• Court: Indiana Appellate Court

66 N.E. 777

PITTSBURGH, C., C. & ST. L. RY. CO.

v.McNEIL.¹

Appellate Court of Indiana, Division No. 2.

March 20, 1903.

Appeal from Superior Court, Marion County; James M. Leathers, Judge.

Action by George R. McNeil, by his next friend, against the Pittsburgh, Cincinnati, Chicago & St, Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

S. O. Pickens, for appellant. L. P. Harlan and Harding, Hovey & Wiltsie, for appellee.

WILEY, J.

Action by appellee against appellant to recover damages for personal injuries claimed to have been inflicted by one of appellant's trains while running on the Belt Railroad. The amended complaint was in a single paragraph, to which a demurrer was overruled. Answer in denial, trial by jury, verdict and judgment for $4,500. Motion for a new trial overruled. Overruling the demurrer to the complaint and the motion for a new trial are assigned as errors.

The negligence relied upon is backing a train within the corporate limits of the city of Indianapolis, in violation of a city ordinance, which is set out in the complaint. This ordinance requires the engine bell to be ringing when a train is running backwards within the city limits, and that a “lookout” be stationed at the rear end of such train to avoid accidents. The complaint avers that appellant was running one of its trains over and along the Belt Railroad; that at Fountain street said train stopped, and was divided; that the rear car of the front section stood across the sidewalk on the east side of said street, and obstructed said sidewalk; that appellee was traveling on said street, going to his home, and in so doing had to cross the railroad track; that when he was crossing said track the front section of the train was “carelessly and negligently suddenly and violently pushed backward without the ringing of any bell, and without any notice or signal or warning, and without any one at the rear of the train to give warning to travelers, whereby he was knocked down,” etc. It is argued by counsel for appellant that it is not a violation of the ordinance for those in charge of a freight train which is cut in two at a street crossing to push a portion of the train backward over the crossing without warning, in order to couple it with the section of the train on the opposite side of the crossing. In support of the position assumed by appellant's counsel we are cited to the case of the Lake Shore, etc., Co. v. Pinchin, 112 Ind. 592, 13 N. E. 677. That case is so unlike the one at bar that it does not lend any aid to appellant. There the appellee undertook to pass between two cars of a through freight train while they were coupled together and the train had been temporarily stopped, but was moving slowly when he attempted to pass between the cars. The complaint before us was sufficient to withstand a demurrer. Louisville, etc., R. Co. v. Bates, Adm'r, 146 Ind. 564, 45 N. E. 108;Rodgers v. Baltimore, etc., R. Co., 150 Ind. 397, 49 N. E. 453.

A brief statement of the material facts exhibited by the evidence is important before taking up the questions presented by the motion for a new trial. Appellee was a little over seven years old. On the day he was injured he had been away from home, playing with his cousins, and when injured was on his way home. To reach home he had to cross Fountain street, and when he reached said street appellant's train was standing on the track, cut in two. From Fountain street for nearly a mile to the east or northeast there is a steep grade, which heavy trains are unable to ascend. It was customary for trainmen to divide their trains into two sections at the foot of the grade, and to take each section separately over the hill. This had been done in this instance, and, while the forward section was in motion, appellee in some manner fell or was knocked under the train, whereby his left foot was crushed, and the leg had to be amputated between the ankle and knee. There is a sharp conflict in the evidence as to how the injury occurred. Appellee testified that he was returning home from a neighbor's house; that when he came to the railroad tracks there was a train standing on the crossing; that the train had been divided, so that there was room for wagons to pass between the two sections; that as he was passing across the track the forward section of the train “kind of gave a slack,” and backed down upon him. A boy 13 years old, who lived near where the accident occurred, and who was wholly disinterested, testified that appellee was trying to jump on the side of the freight car while the train was in motion, when he slipped, and was thrown under the wheels. This witness was the only one, besides the appellee himself, who saw the accident. He was standing in the door of his home, and testified that he saw appellee jump on the car twice before he was injured. Two other witnesses testified that they saw appellee hanging on the cars a few minutes before he was injured, but that they did not witness the accident. The appellee introduced an ordinance of the common council of Indianapolis making it the duty of those in charge of a locomotive to ring the bell when the same shall be running in or through said city, and providing that it shall be unlawful for persons managing a train of cars to cause the same to be run backwards in or through the city without providing a watchman on the rear end of such train in order to avoid accidents. There was no watchman on the rear of the forward section of the train, and it is not clear from the evidence as to whether the bell attached to the locomotive was ringing. None of the employés saw the accident, and did not know of it for some time after it occurred. If appellee was climbing or attempting to climb upon the train when it was in motion, he would be guilty of contributory negligence, and could not recover.

Several questions are presented by the motion for a new trial, based upon alleged errors of the court in giving and refusing to give certain instructions and in refusing to admit certain evidence offered by appellant. We will first consider the question raised by the ruling of the court in rejecting the offered evidence. Appellant rested its defense upon two propositions: First, that it was not guilty of negligence; and, second, that appellee was guilty of contributory negligence. It is urged that he was guilty of negligence in two particulars: First, that he was injured while trying to jump on the moving train; and, second, that it was negligence in his attempting to pass over the track in such close proximity to the rear car, when he knew the locomotive was attached to the front section of the train, and was liable to move at any moment. Appellant...