Pittsburgh, Cincinnati, Chicago And St. Louis Railway Co. v. Parish
| Decision Date | 14 January 1902 |
| Docket Number | 3,897 |
| Citation | 62 N.E. 514,28 Ind.App. 189 |
| Parties | PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. PARISH, ADMINISTRATRIX |
| Court | Indiana Appellate Court |
From Wayne Circuit Court; H. C. Fox, Judge.
Action by Clara Parish, administratrix, against the Pittsburgh Cincinnati, Chicago & St. Louis Railway Company for damages. From a judgment for plaintiff, defendant appeals.
Affirmed.
John L Rupe, for appellant.
J. F Robbins, R. A. Jackson and H. C. Starr, for appellee.
Appellee sued for damages for the alleged negligent killing of her intestate. Demurrers to each of the two paragraphs of complaint overruled. Verdict in appellee's favor. Motion for a new trial overruled. Judgment on the verdict. The errors assigned and argued question the rulings on the demurrers and the denial of a new trial.
The averments of the first paragraph upon the questions of negligence and freedom from contributory negligence are, substantially, that on the 21st day of July, 1898, decedent was a freight conductor, and as such it was necessary, in the proper management of trains, to go on the tops of freight cars and walk over the same while in motion; that at that time, and for some time prior thereto, there was a certain tree standing and growing along appellant's right of way, and near to the tracks, the limbs and branches of which were hung and extended over and above the tracks to such height and in such manner and position as that the same would come in contact with, and form a dangerous obstruction to, any one standing or walking on or along the tops of freight cars at that point, all of which facts were at all times well known to appellant, "but of which facts, the plaintiff avers, the said John H. Parish never at any time had any notice or knowledge, and of which facts he was at all times wholly ignorant"; that appellant, well knowing the existence of such obstruction, and the nature and dangerous character of the same, at all times, knowingly, carelessly and negligently failed to remove or cause such obstruction to be removed, but knowingly, carelessly, and negligently suffered and permitted the same to remain an obstruction, and carelessly and negligently failed to provide or maintain any apparatus or means whatever in any place to give warning to any trainmen who might be upon the tops of cars of the existence of such obstruction, or of the approach of trains to the same, and at all times carelessly and negligently wholly failed to give to trainmen, by any means whatever, any notice or knowledge of the existence of such obstruction; that between twelve and one o'clock on the morning of July 21, 1898, decedent was in charge of a freight train as conductor, and, a short time before the train reached the point overhung by the limbs and branches of the tree, it became his duty to go upon the tops of the moving freight cars, and stand and walk over the tops of the same, which he did, and while so doing and while in the exercise of all proper care and diligence, in entire ignorance of the obstruction, and wholly free from fault or negligence, he was suddenly, without warning, brought in contact with the obstruction and thrown to the ground, producing injuries resulting in death. The amended second paragraph differs from the first only in that it is more specifically averred that decedent was ignorant of the obstruction and the danger thereof. But as the averment of the first paragraph upon that point, which is set out above, amounts to an averment that decedent was ignorant of the obstruction and of the danger, the two paragraphs in their essential averments are substantially the same.
The pleading charges that appellant, at the time in question and prior thereto, negligently permitted the branches of a tree to overhang its tracks so as to form a dangerous obstruction to employes while discharging certain duties, and that appellant knew the existence and nature of the obstruction, and its dangerous character, and had never given any of its trainmen any notice of the existence of the obstruction; that the decedent had no notice or knowledge of the existence of the obstruction or of the danger; and that decedent, while in appellant's employ, and in the discharge of his duty as a conductor, and without fault on his part, was struck by the overhanging branches and thrown from the car and killed.
It can not be said that the danger from the branches of a tree, which the company permits to hang over its tracks so low that they may come in contact with employes while engaged in their duties on the tops of its cars, is a danger incident to the service. Nor is it such a danger that the employe would be presumed to know it. It is true, it is not averred how long decedent had been engaged in the service; and, being of mature years, it will be presumed he had the knowledge and skill fitting him for the service. But the demurrer admits that he did not know of the danger; that he did not know of the obstruction. It was not such an open and obvious obstruction that we can say, as matter of law, that the employe, in the discharge of his duty, was bound to see it, and that he was, therefore, chargeable with knowledge of the danger from it. There are cases where it is apparent from the facts averred that the complaining party had an equal opportunity with the employer to know of a defect or obstruction, or where the conclusion is irresistible that he did know of it, in such case it is not sufficient to aver simply that he did not know it. But this is not such a case. "While an employe," said the court in Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 N.E. 235,
Decedent had the right to assume that the company would not permit an obstruction to remain above its tracks which would be dangerous to its employes while operating its trains. If there was such an obstruction, and the company knew it, it was its duty to notify its trainmen of the danger. It was no part of decedent's duty to anticipate such an obstruction. He may have passed it seldom or often, and yet know nothing of its existence. It was not such an obstruction as he must necessarily see when passing over the road with his train. It was dangerous to an employe only when on top of a car. It does not appear from the pleading that decedent had ever passed over that part of the road before that trip. But even if that did appear, there is nothing in the complaint to show that he must necessarily see the obstruction when passing it, or that any facts existed within his knowledge to warn him of any danger. The demurrers to the complaint were properly overruled. See, Baltimore, etc., R. Co. v. Rowan, 104 Ind. 88, 3 N.E. 627; Louisville, etc., R. Co. v. Wright, 115 Ind. 378, 7 Am. St. 432, 16 N.E. 145; Pennsylvania Co. v. Sears, 136 Ind. 460, 34 N.E. 15.
Appellants road where it crossed the main street of the town ran north and south, and consisted of two tracks, the west track being the main track; and the other, as near the main track as would leave proper clearance, was a switch track used for switching and a passing siding for trains. Six or seven feet east of the switch track, at the southeast corner of the crossing and the street, and on the outer edge of the sidewalk in front of private property, and not upon appellant's right of way or property, stood a tree with a limb about twelve feet from the ground, the branches of which extended out towards the tracks. The jury found that when Parish was injured, and during more than a year prior thereto, the limbs and branches of this tree extended over the switch track, constituting an obstruction dangerous to the lives of employes when on the tops of freight cars, and sufficient in size and strength to push a man off of the top of a car running from three to six miles an hour. There is evidence to sustain these findings. Appellant not only had the right to remove such overhanging limbs, whether the tree stood upon its right of way, or upon the premises of an adjoining landowner, but it was its duty to remove them, if such removal was necessary to provide a reasonably safe place for its employes to work. From the whole record, it is clear that, as to appellant's negligence, the jury's general verdict in appellee's favor was authorized. See, Toledo, etc., R. Co. v. Loop, 139 Ind. 542, 39 N.E. 306.
The jury answered that decedent was pushed or knocked off the car by the limbs of the tree, but it is argued that the evidence leaves it a matter of speculation as to how he came to fall and that there is no evidence that he was at the time in the exercise of due care. It is well settled that the absence of contributory negligence, as any other disputed fact, may be established by circumstantial evidence. Charles E. Hebbler testified that he was front brakeman on southbound train No. 76; that decedent was conductor on northbound train No. 87; that witness' train was standing on the main track, waiting for decedent's train to pull in on the switch, and, as it came in on the switch, he says, "Why, I was standing on top, and I could see the motion of a man's arms and see the limbs moving, and then I ...
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