Pittsburgh, Cincinnati, Chicago and St. Louis Railway v. Sudhoff

• Decision Date: 11 January 1910
• Docket Number: 21,594
• Citation: 90 N.E. 467,173 Ind. 314
• Parties: Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Sudhoff, Administratrix
• Court: Indiana Supreme Court

90 N.E. 467

173 Ind. 314

Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Sudhoff, Administratrix

No. 21,594

Supreme Court of Indiana

January 11, 1910

From Wayne Circuit Court; Henry C. Fox, Judge.

Action by Jeannette Sudhoff, as administratrix of the estate of John G. Sudhoff, deceased, against the Pittsburgh, Cincinnati Chicago and St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. (Transferred from the Appellate Court under § 1394 Burns 1908, subd. 2, Acts 1901, p 565, § 10.)

Affirmed.

John L Rupe and Jesse S. Reeves, for appellant.

Shively & Shively, for appellee.

OPINION

Jordan, J.

This action was instituted by Jeanette Sudhoff, administratrix of the estate of John G. Sudhoff, deceased, to recover damages for his death, which is imputed to the negligence of appellant railway company. The complaint is in two paragraphs. Appellant unsuccessfully demurred for want of facts to the second paragraph. There was a general denial and also a special answer by appellant to each paragraph of the complaint. To the special answer appellee replied. Upon the issues as joined the case was tried by a jury. A general verdict was returned in favor of the appellee, assessing the damages at $ 5,000. Along with this general verdict the jury returned answers to a series of interrogatories. A motion for judgment in favor of appellant upon the answers to the interrogatories was denied. Appellant also moved for a new trial, assigning various reasons therein. This motion was overruled.

The errors pointed out and relied upon for reversal are: (1) Overruling the demurrer to the second paragraph of the complaint; (2) overruling the motion for a new trial.

The first paragraph of the complaint alleges substantially the following facts. Appellant railway company is now and has been for more than five years last past a corporation organized under the laws of the State of Indiana, and during all of said period it owned, operated and managed a line of railroad extending from the city of Cincinnati, Ohio, to the city of Logansport, Indiana, in and through the city of Richmond and the counties of Wayne and Henry in said State; that on January 28, 1905, John G. Sudhoff, deceased, was in the employ of said defendant as an engineer, operating a locomotive engine on said railroad in and through said counties; that said Sudhoff was a competent employe, and upon said date was directed and ordered by a superior officer of said defendant railroad company to connect the engine upon which he was then engineer to a certain engine and freight-train then and there to be run from said city of Richmond to said city of Logansport, over and upon the line of defendant's railroad, in order to assist in hauling said freight-train to a certain station on defendant's railroad known as Sulphur Springs; that when said train, as made up, was within a short distance of said station of Sulphur Springs, the engine, which was being operated by Sudhoff, was disconnected from the engine which was connected with said freight-train, and said engine operated by Sudhoff then proceeded in advance of said freight-train to the switch and side-track at the north side of the main line at Sulphur Springs; that this switch was opened at the south end by H. C. Fickle, a brakeman employed upon said engine with said Sudhoff; that Sudhoff ran his engine into said switch and side-track to a distance of about three hundred feet, and then brought it to a standstill; that Sudhoff remained upon his engine as it stood upon said switch and side-track, as it was his duty to do, waiting until the aforesaid engine and freight-train, which were to be run to the city of Logansport, had passed to the northward; that when said freight-train and engine, which were then running at a high rate of speed, came to said switch and side-track, instead of proceeding along the main line of said track, were negligently and carelessly permitted to be run into and upon said switch and side-track, and upon and against said engine upon which said Sudhoff was then and there standing; that said freight-train and engine struck the engine, upon which Sudhoff was acting as engineer, with great force, thereby throwing him between the engine and the tender, where his body and legs were scalded by escaping steam, and he was thereby injured to such an extent that he died of the effects thereof on February 1, 1905, at said city of Richmond.

It is further alleged that, at the time of said accident, and long prior thereto, the defendant railroad company maintained a signal-light at the junction of said side-track and main line where Sudhoff entered with his engine as aforesaid; that said signal-light was so arranged that when it was in proper condition and properly operated it displayed a light near the main track at a height of between fifteen and twenty feet from the ground, and could be seen for a long distance by those in charge of an engine approaching the entrance to said switch; that when said switch was open and connected with the main track said signal automatically displayed a red light, which indicated that the switch was open; that when said signal-light was not burning, or was imperfectly displayed, under the rules of the defendant company an engineer operating an engine hauling the train and approaching said switch, and intending to run his said train past said switch and upon the main line, was bound to regard it as a stop signal, and it became his duty to bring his train to a full stop; that defendant company carelessly and negligently failed to have said signal lighted and burning at the time when said engine and freight-train, following said Sudhoff's engine, ran into and upon said switch and side-track against the engine upon which Sudhoff was standing, although it was then in the night-time and between the hours of sunset and sunrise, and thereby caused said injury and death as aforesaid; that said engineer, in charge of the engine hauling said train, in violation of his plain duty, carelessly and negligently ran said engine and freight-train at a high rate of speed past said signal when the same was not burning and imperfectly displayed, and then and there carelessly and negligently failed to regard said imperfect display and absence of said signal as a stop signal, which it was his duty to do as herein alleged, and then and there carelessly and negligently failed to bring his train to a full stop as was his duty to do as aforesaid.

It is further alleged that the engineer, in charge of said engine hauling the freight-train in a rapid manner as alleged, negligently and carelessly failed to observe that said signal was not lighted and burning at the entrance of said switch and side-track; that by reason of the carelessness and negligence of the defendant company in not keeping said signal-light properly burning and displayed, and the further carelessness and negligence of the engineer in charge of said engine attached to said freight-train in failing to observe that said signal was not properly burning and displayed, and to regard the absence of said signal as a stop signal, and his further careless and negligent act in running his engine and train of cars at a high rate of speed past said signal, contrary to the rules of the defendant company and in violation of said stop signal, which it was his duty to observe, and upon and into said open switch and against said engine upon which said Sudhoff was then standing, the latter then and thereby received said injuries hereinbefore mentioned and described, and was killed as herein alleged.

It is shown that the deceased was forty-one years of age; that he was earning, as an employe of the company, from $ 100 to $ 140 per month; that he had been in the employ of the company for about fourteen years; that he left surviving him a widow, and three children of the respective ages of nine, eight and four; that his said wife and children were wholly dependent upon him for maintenance and support. Wherefore damages in the sum of $ 10,000 are demanded.

The second paragraph of complaint proceeds upon the theory that the accident, which resulted in the death of the deceased, was due to the negligence of Fickle, the brakeman, in failing to close the switch. It is alleged that said brakeman was, at the time of his employment by the defendant, incompetent, and that he so continued to the time of the accident, all of which incompetency or unfitness on the part of said brakeman in the performance of his duty as such was well known to the defendant company.

Stripping the first paragraph of the complaint of its immaterial and redundant averments, it is evident that under the facts therein alleged it is based upon the provisions of subdivision four of § 8017 Burns 1908, Acts 1893, p. 294, § 1, which make a railroad company liable for injury or damages suffered by an employe thereof, where such damages are caused by the negligence of one of its servants who is in charge of any locomotive engine or train upon the railroad of such company. The sufficiency of the first paragraph of the complaint is not assailed or in any manner called in question. We dismiss without consideration the contention of appellant's counsel that the court erred in overruling the demurrer to the second paragraph of the complaint, for the reason that the general verdict is based alone upon the first paragraph.

By interrogatory twenty-seven the jury was asked to state, in answer thereto, if it found for the plaintiff, whether it found upon the first or second paragraph of the complaint or upon both. The answer was "Both." Counsel for appellant contend that by this answer it is disclosed that the verdict is founded not only upon the first, but also upon...