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

• Decision Date: 02 October 1901
• Citation: 157 Ind. 216,61 N.E. 229
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. MARTIN.
• Court: Indiana Supreme Court

157 Ind. 216

61 N.E. 229

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

v.MARTIN.

Supreme Court of Indiana.

Oct. 2, 1901.

Appeal from superior court, Marion county; John L. McMaster, Judge.

Action by Lettie R. Martin against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.Samuel O. Pickens, for appellant. Kealing & Hugg, for appellee.

BAKER, J.

Appellee recovered a judgment against appellant for $7,250 for wrongfully causing the death of her intestate. Appellant assigns that the court erred in overruling its motion to require each paragraph of complaint to be made more specific, its demurrers to the first and second paragraphs of complaint, and its motion for a new trial. The motion to make more specific is not in the record. The clerk has copied the motion into the transcript as a part of the proceedings of the day on which the motion was filed. After the motion was overruled, time was given in which to file a bill of exceptions. The bill, as copied by the clerk, does not contain the motion, but refers to the page in the transcript where it had been previously copied. No order of court was made that the motion should be a part of the record without a bill of exceptions. The act of the clerk in copying the motion into the transcript, outside of the bill and without order of court, was unwarranted, under section 662, Burns' Rev. St. 1901 (section 650, Rev. St. 1881; section 650, Horner's Rev. St. 1897). Only those matters that are already properly in the transcript as a part of the record may be brought into the transcript of a bill of exceptions by reference. Gussman v. Gussman, 140 Ind. 433, 39 N. E. 918.

In support of the demurrers, appellant contends that appellee's averments do not affirmatively show that the decedent was free from fault. In the first paragraph the accident is described substantially as follows: That from Washington street to Massachusetts avenue, in Indianapolis, Ind., appellant, the Big Four, the Lake Erie & Western, and the Monon Companies used a line of railway tracks in common; that on August 7, 1897, and long prior thereto, decedent was employed by the Monon Company as a locomotive engineer; that on that day decedent, in performance of his duties to his employer, had his engine upon the common tracks, and thereupon appellant wrongfully, carelessly, and negligently ran one of its engines against decedent's engine, and killed him, without any fault on his part. The second paragraph comprised substantially the same and the following additional averments: That it was the rule and custom of all the companies, as appellant knew, that engines and cars should be run over the common tracks at a reasonble speed, and under full control of the engineers, so that a stop could be made at any time within a very short distance; that appellant violated the rule, and ran an engine at an unreasonable and dangerous speed, without its being under full control of the engineer, wrongfully and negligently against decedent's engine, and killed him, without any fault on his part. Each paragraph contains the general averment that decedent was free from contributory negligence. This is sufficient unless specific averments prove the general allegations to be false. It appears that decedent was in a place where he had a right to be, was in the line of his employment, and was killed, while there, in a collision with respect to which appellant was negligent. What decedent did, or what, having the opportunity, he failed to do, is not specifically alleged. The demurrers were therefore properly overruled. Stewart v. Railroad Co., 130 Ind. 242, 29 N. E. 916; Railroad Co. v. Sutton, 148 Ind. 169, 46 N. E. 462.

Appellant contends that the evidence fails to establish decedent's freedom from contributorynegligence. The evidence is conflicting at some points, but the jury were warranted in taking the facts to be these: Extending southerly from Massachusetts avenue to Washington street were two main tracks, used in common by appellant, the Big Four, the Lake Erie & Western, and the Monon Companies. One track was owned by the Big Four, and the other by the Lake Erie & Western. All south-bound engines and trains used the east track; north-bound, the west track. Near Massachusetts avenue was a switch, through which south-bound trains had to pass in order to enter upon this common track. Near Washington street was a switch, through which south-bound trains had to pass from this common track in order to enter upon the tracks of the Union Railway Company, a corporation that owned the Union Station and a belt-line connecting together all the railroads of Indianapolis. Near this last-named switch was another, leading to the Monon freight yard. The Massachusetts avenue switch was in charge of a switch tender employed by the Big Four. The Washington street switch was in charge of a switch tender employed by the Union Company. The distance between these switches was a little over a mile. No switch intervened. About 600 feet north of Washington street, and parallel therewith, was Market street, from which the common tracks curved somewhat to the east. The four companies heretofore named used the common tracks for their passenger and freight trains. More than 30 passenger trains passed daily over these tracks. The switch engines of all companies in the city used these tracks in the handling and interchange of freight cars. The trainmen were not permitted to throw the switches, but the tenders in charge governed the admission or exclusion of trains and engines. No printed rules of any of the companies, or of the companies jointly, applied to the operation of trains and engines upon the common tracks, but, by usage, the following rules had become established: While on these tracks all engines and trains had equal rights; all south bound ran on the east track, all north bound on the west; each engine or train was to be run under full control, and with a sharp lookout, so as to avoid running into any engine or train ahead of it; no flagging or other warning to the rear was required to be used; as no north-bound engines were admitted on the east track, and vice versa, the safety of all was to be maintained by each avoiding injury to those ahead; if an incoming passenger train from the north was ten or more minutes late, switch engines with cars were admitted on the east or southbound track; if a switch engine, moving south, had a car or cars in front destined for the Monon yard, the crew had the right to put the car in the yard, move northward sufficiently to clear the switch, and continue south; and if a passenger train followed it was to be under full control, and its crew were to look out for the switch engine and cars ahead of it, to come to a full stop if necessary, and to whistle as a signal that they wanted the track, and thereupon the switching crew were to get off of the common track and out of the way as soon as practicable. An ordinance forbade the running of engines and trains anywhere in the city at a higher speed than four miles an hour. About 3 o'clock in the morning of August 7, 1897, a Monon switching crew came from the north to the Massachusetts avenue switch leading to the south-bound common track. The crew comprised the conductor, two brakemen, the fireman, and decedent as the engineer. The conductor had charge of his train, and authority to direct the other members of the crew. Appellant's south-bound passenger train, according to schedule, was due in 2 or 3 minutes, but it was 15 minutes late, and was so reported. The switch tender gave the track to the Monon conductor. The engine was at the north or rear end of a train of 20 freight cars, the southernmost one of which was destined to the Monon yard. The conductor was on this car, one brakeman was at the center of the train, the other brakeman was on the car next the engine, and the fireman and decedent were in the cab of the engine. Near Washington street the conductor gave the switch tender a signal to open the switch leading into the Monon yard. The conductor cut off the car, and when it had passed over the switch gave the signal to stop the engine. The car passed into the yard of its momentum. The south end of the remaining cars was over the switch about 40 feet. The conductor gave the signal to go north. After going far enough to clear the switch, he signaled to stop, and then proceeded south. Just after this last signal was given the fireman saw the reflection of the headlight of appellant's train, which was then over 750 feet away. The train itself was not in sight on account of the curve in the track. The fireman notified decedent, who immediately whistled as a warning for appellant's train to stop, and said to the fireman, “They will stop.” The train was then about 400 feet away. Decedent had stopped his...