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

• Citation: 186 Ind. 672,116 N.E. 582
• Decision Date: 19 June 1917
• Docket Number: No. 22471.,22471.
• Court: Supreme Court of Indiana
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. BENNETT.

186 Ind. 672

116 N.E. 582

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

v.BENNETT.

No. 22471.

Supreme Court of Indiana.

June 19, 1917.

Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.

Action by John T. Bennett against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

G. E. Ross, of Logansport, for appellant. Wm. M. Amsden, of Marion, for appellee.

SPENCER, J.

This is an appeal from a judgment for $6,500 recovered by appellee on account of personal injuries sustained by him while in the employ of appellant. The assignment of errors contains five specifications, of which the first four, in so far as they properly present any question, require a determination of the sufficiency of appellee's complaint as against a demurrer for want of facts. That pleading is in three paragraphs, of which the first alleges, in substance, that on March 2, 1910, appellee was in the employ of appellant as a section hand or track laborer, and was then engaged, with other section men, in the work of raising and ballasting a switch track owned and maintained by appellant near the plant of the Thompson Bottle Company at Gas City; that during the progress of the work one of appellant's trains, consisting of an engine and several freight cars, entered the switch at its north end and proceeded southwardly until it reached the place of appellee's employment, where it stopped and waited until appellee and other members of the section gang had finished temporarily the raising and ballasting of the track at that point in order that said train might pass over the same in safety; that with the completion of such temporary ballasting the train proceeded southwardly over said track and set some of the cars in onto a parallel switch running to the Thompson factory; that immediatelyafter appellant's train had passed over the first switch track at the point of temporary repair, appellee and another workman were ordered by their section foreman and superior officer, one O'Brien, to tamp the ties of said track between the rails thereof, and in obedience to said order, which they were bound to obey, they went onto said track and proceeded with the work as directed; that while appellee and his fellow workman were thus engaged, appellant's switch engine proceeded northwardly over another switch track, parallel with the track on which appellee was at work, and within 40 feet of the place of his employment, to a point north thereof, where a cut of cars, consisting of three gondolas and one box car, was coupled onto said engine and pulled southwardly to a point below the intersection of the two switch tracks; that immediately thereafter said cut of cars was “kicked” or shunted northwardly over the track on which appellee was at work, without the sounding of a bell or whistle, or the giving of any other warning to appellee of the approach of said car, and he was struck thereby and injured. Other allegations of the complaint show that appellee's attention was necessarily directed to the work in which he was engaged, and charge that under the circumstances then existing the duty rested on appellant, through its agents and employés in charge of said engine and cut of cars, to warn appellee of the danger to which he was exposed by their acts.

Each of the other paragraphs of complaint sets up practically the same facts, circumstances, and conditions surrounding the injury to appellee, but proceed on different theories in their allegations of negligence. The second paragraph repeats the charge of negligence contained in the first paragraph, and alleges, further, that appellant's switching crew failed to observe certain rules, by-laws, and regulations of the company concerning the giving of warnings and signals...