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

• Decision Date: 31 October 1906
• Docket Number: No. 20,582.,20,582.
• Citation: 78 N.E. 1033,168 Ind. 438
• Court: Indiana Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. LIGHTHEISER.

168 Ind. 438

78 N.E. 1033

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

v.LIGHTHEISER.

No. 20,582.

Supreme Court of Indiana.

Oct. 31, 1906.

Appeal from Circuit Court, Cass County; T. F. Palmer, Special Judge.

Action by George W. Lightheiser against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.G. E. Ross, for appellant. Frederick Landis, Nelson, Myers & Yarlott, and McConnell, Jenkines, Jenkines & Stuart, for appellee.

MONKS, J.

Appellee brought this action to recover damages for personal injuries sustained by him while in the service of appellant by reason of being knocked down and run over by appellant's train at its station in the city of Logansport, Ind. This is the second appeal of said cause. Pittsburgh, etc., Ry. Co. v. Lightheiser, 163 Ind. 247, 71 N. E. 218, 660. On the former appeal the second paragraph of complaint was held sufficient upon demurrer. The other paragraphs of the complaint, being the first, third, and fourth were held insufficient, and the cause reversed for that reason. When the cause was returned to the court below, appellee filed an amendment first paragraph of complaint. Appellant's demurrer thereto for want of facts was overruled. After issues were joined the cause was tried by a jury, and a general verdict returned in favor of appellee. The jury also found specially upon particular questions of fact stated to them in writing in the form of interrogatories, submitted by the court under section 555, Burns' Ann. St. 1901 (Acts 1897, p. 128, c. 85). Over a motion by appellant for judgment in its favor on the answers to the interrogatories notwithstanding the general verdict, and over a motion for a new trial, the court rendered judgment on the general verdict in favor of appellee. The errors assigned call in question the action of the court in overruling (1) the demurrer to the amended first paragraph of complaint; (2) the motion for a judgment in favor of appellant on the answers of the jury to the interrogatories notwithstanding the general verdict; and (3)the motion for a new trial.

This court on the former appeal correctly held (163 Ind. 256-262, 71 N. E. 218, 660) that the second paragraph of complaint was founded upon the employers' liability act (section 7083 et seq., Burns' Ann. St. 1901), and that it was sufficient to withstand a demurrer for want of facts. It appears from said second paragraph that appellee was in the employ of appellant as locomotive engineer, and that he received the injuries sued for in the city of Logansport, Ind., during the nighttime, by being knocked down and run over by a train, consisting of a locomotive and mail car belonging to appellant, which was being run backwards in appellant's yards. It is averred in said paragraph that appellee had been ordered to make a trip upon appellant's road; “that in obedience to said order plaintiff, as was his duty under his employment, took his position between the track on which his locomotive was standing and the track on which said locomotive and mail car were (the mail car being in front) for the purpose of examining, accepting, taking charge, and assuming control, as locomotive engineer, of his said locomotive, that the said locomotive began to move east, and at the same time said locomotive and mail car passed him, leaving a space of but four feet between said mail car, which was in front, and his locomotive, where he might stand.” It is further alleged that while appellee was occupying this position, “as it was his duty to do under his employment,” he was knocked down and run over by said mail car and locomotive engine. Said paragraph counts on the negligence of the engineer in control of the locomotive which was moving the mail car. He is charged with negligently moving said mail car backwards without a person stationed on the forward end thereof, so as to perceive the first sign of danger and to signal the engineer, as required by a rule of appellant. Said engineer is also charged with negligence in moving said locomotive and mail car in violation of certain ordinances of the city of Logansport. It is also alleged that appellee was knocked down and run over by said car as a result of the negligence pleaded. Said amended first paragraph of complaint is founded on the fourth subdivision of the employers' liability act, and is the same as the second paragraph correctly held good on the former appeal, except it pleads the violation of four additional rules of the company not mentioned in the second paragraph. On the former appeal one of the many objections made by appellant's counsel to said second paragraph of complaint was “that, as it appeared therefrom that appellee had been continuously in the employment of appellant as a locomotive engineer for 27 years, the employers' liability act of 1893 is unconstitutional in such a case as amounting to an attempt to impair the obligation of a contract in violation of section 24 of article 1 of the state Constitution and section10 of article 1 of the Constitution of the United States, which prohibits the passing of any ‘ex post facto’ law or law impairing the obligation of contract.” On this appeal he contends that for the same reason said employers' liability act violates the ex post facto clause of the said sections. It is held that the phrase “ex post facto laws” is only applicable to criminal and penal laws, and not to laws like the one in controversy in this case. Cooley's Constitutional Limitations (7th Ed.) 373-376. But, if it were otherwise, what was said by this court on the former appeal as to the contention then made is a sufficient answer to the one now made. This court said (163 Ind. 262, 71 N. E. 218, 660): “It is enough to dispose of this objection to state that it does not appear that there was any such definitive agreement between the parties for the future as would warrant the assertion that any contract right had been impaired.” Upon the authority of the opinion on the former appeal, we hold that said amended first paragraph is sufficient, and that the court did not err in overruling the appellant's demurrer thereto.

Appellant next insists that the court below erred in overruling the motion for judgment in its favor on the answers of the jury to the interrogatories notwithstanding the general verdict. The general verdict necessarily determined all material issues in favor of appellee, and it is well settled that, unless the answers of the jury to the interrogatories are in irreconcilable conflict with the general verdict, the court did not err in overruling the appellant's motion for judgment in its favor. The answers to the interrogatories cannot be aided by any presumptions, for the rule is that all reasonable presumptions will be indulged in favor of the general verdict, and none will he indulged in favor of the answers to the interrogatories. The special findings of the jury in answer to the interrogatories override the general verdict only when both cannot stand; the conflict being such that upon the face of the record as to be beyond the possibility of being removed by any evidence admissible under the issues in the cause. Johnson v. Gibhauer, 159 Ind. 271, 282, 283, 64 N. E. 855, and cases cited; Indiana, etc., Ry. Co. v. Maurer, 160 Ind. 25, 27, 66 N. E. 156;Southern, etc., Ry. Co. v. Peyton, 157 Ind. 690, 697, 61 N. E. 722;City of Jeffersonville v. Gray, 165 Ind. 26, 29, 74 N. E. 611, and cases cited; McCoy v. Kokomo Ry. v. Light Co., 158 Ind. 662-664, 64 N. E. 92, and cases cited. Appellant claims that the jury's answers to interrogatories show that “appellee entered appellant's employ in 1874 as locomotive engineman; that he served as such for 10 years; that 17 years prior to January 19, 1901, the date when he received the injuries sued for, he was promoted to passenger engineman, and that he served appellant as such continuously up to the time of his injuries; that he took charge of his engine on the morning he was injured at appellant's shops about one mile east of its passenger station, and ran such engine down to the passenger station, where he alighted to get his orders; that he knew of the location and use of appellant's tracks; that the rules of the company required him, after receiving his orders, to go and take charge of his engine; that he received his orders at 3:23 a. m., but that he did not go to his engine, although he had ample time and opportunity; that it was customary for appellant to use the east-bound main track while a train was standing at the passenger platform on the north-bound track; that the space between the two tracks was sufficient for plaintiff to stand and not be injured by passing trains; that the jury found, in answer to interrogatories 131 and 133, that there is no evidence to show that the appellee could not see and hear the approaching train that struck him in time to have avoided the injury.” Counsel for appellant insists that, “when the jury found the facts above stated, they found that apppellee saw and heard the approaching train, because the law assumes he saw and heard it, if the view is obstructed and there is no evidence that he did not see and hear it. If the facts above set out are true, appellee not only assumed the risk which caused his injury but he is guilty of contributory negligence. Said facts cannot be true and the general verdict stand.”

It is not necessary to determine what effect, if any, the facts stated by appellant's counsel as found by the jury would have upon the general verdict, for the reason that the jury also found other and additional facts in answers to interrogatories which show that appellee, while going across the north-bound main track, or while standing between the two tracks, listened to see if he could hear whether a train of cars was approaching; that he could not have seen the engine and car approaching, if he had looked carefully and diligently; that there was...