Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Cozatt
| Decision Date | 18 December 1906 |
| Docket Number | 5,658 |
| Citation | 79 N.E. 534,39 Ind.App. 682 |
| Court | Indiana Appellate Court |
| Parties | PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY v. COZATT |
Rehearing denied February 27, 1907. Transfer denied April 2 1907.
From Morgan Circuit Court; Joseph W. Williams, Judge.
Action by Charles E. Cozatt against the Pittsburgh, Cincinnati Chicago & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 5,000, defendant appeals.
Affirmed.
Samuel O. Pickens and Owen Pickens, for appellant.
John M. Bailey and George W. Grubbs, for appellee.
Appellee recovered a judgment below against appellant for damages for personal injuries alleged to have been caused by its negligence. The complaint is in two paragraphs, to each of which a demurrer was overruled. Answer in denial. Trial by jury, and with their general verdict they found specially as to specific facts by their answers to interrogatories. Appellant's motions for a new trial and for judgment in its favor upon the interrogatories were overruled.
Overruling the demurrer to the complaint, the motion for a new trial, and the motion for judgment on the answers to the interrogatories are all assigned as errors, but they are all expressly waived in argument, excepting the overruling of the motion for a new trial.
That the nature of the action may clearly appear, it is important to state the material facts relied upon as disclosed by the complaint. The first paragraph avers that appellant owned and operated a steam railroad, and that it had tracks along and upon the public streets and alleys in the city of Indianapolis, and owned and operated a certain building for a freight-depot, the west end thereof fronting on South Delaware street; that inside of said depot appellant had four or five tracks, over which it ran its cars for the purpose of loading and unloading freight; that the building extended east from Delaware street four or five hundred feet, and was open, so as to allow ingress and egress of cars; that the west end of the depot was closed up with a brick wall, and at the end of each track appellant had erected and maintained large posts, for the purpose of preventing trains and cars from running off the tracks into the brick wall; that on the north side of said depot, extending the length thereof, was a platform, on a level with the lower part of the car doors, which was used in loading and unloading freight; that wagons and teams could be driven along the north side of said platform; that the distance from the north rail of the north track in said depot to the south side of said platform was about three feet three inches, and the distance between the platform from the north side of box-cars on the north track was about twelve inches; that the distance between the cars occupying various tracks in the depot was about twelve inches; that when said depot and tracks were full of box-cars, a person in the west end of the depot, at the west end of the cars thereof, could not see or know what was taking place at the east end; that on March 6, 1903, at the time appellee was injured, all said tracks were full of cars, leaving a space between the west end of said cars and said bumping-post, so that persons could pass; that in the northwest corner of said depot the space between the bumping-post of the north rail of the north track and the south side of the platform was filled up with cinders; that on the east side of the bumping-post was a large, square, steel plate, held in place by bolts and screws, which was placed there to allow the drawbars and bumpers to strike against; that at the west end of the platform, and flush with the west wall of the depot, was a large box, eight feet east and west, five feet seven inches north and south, and seven feet high, used by appellant for holding shavings; that in the space between the platform and the north bumping-post on the north track, and against the brick wall, was a brick pier, two feet east and west, seventeen inches north and south, and ten feet high; that a short time before March 6, 1903, one of appellant's cars on one of the tracks in the depot had been run over the bumping-post at the end of said track, and into said brick wall, thereby knocking the same down; that one Millikin had been employed by defendant to rebuild said wall; that appellee, on the day named, was working for Millikin in rebuilding the wall, and was foreman of the men working there, and he was overseeing the work; that appellant knew that plaintiff and the men working under him were working at that time in rebuilding the wall; that the brick, timbers and debris from the torn down wall were scattered along the west end of the depot, and west of said bumping-post, all of which appellant well knew on that day; that in working at that place and time it was necessary for appellee and his men to cross and recross the tracks in the depot, and east of said bumping-post and west of the west end of the cars on said tracks, all of which appellant then and there well knew; that appellee was working with the knowledge and consent of appellant in rebuilding the wall; that in the forenoon of that day he went to the northwest corner of the depot, to said platform, to get a lifting jack and lever, and started to take them to the south side of said depot to use while repairing the wall; that by reason of the debris, hereinbefore mentioned, and the wooden brace and props west of the north bumping-post, appellee could not pass west of said post with the jack and lever; that while he was in the act of pitching the same over the north track, and between the west end of the car standing on the north track and the north bumping-post, and while standing on said cinders with his knee close to the iron plate of said post, appellant carelessly and negligently ran against the car at the east end of the depot on the north track, with such force and violence as, in a moment's time, to jam said car standing on the west end of said north track against the bumping-post; that no warning was given to the appellee that said car would be pushed against said post at said time; that the appellant well knew, or could have known by the exercise of ordinary care, that appellee would be hurt at that time if said car was jammed against said post; that appellee was in the act of pitching said lever as said cars were struck, and before he could let loose of same and step back his knee was caught between the bumper and steel plate on the post, thereby crushing his leg and knee, and making necessary the amputation of the same, to his injury, etc.
The second paragraph of the complaint is substantially identical with the first, with the averment of the following additional facts: That on the morning of March 5, 1903, before he went to work, he explained to the men who had charge, direction and control of the switching of cars in said depot and yards adjoining the same, the situation of the west end of the depot where they had to work, and that they had to cross and recross said tracks, and that it was a dangerous place, and requested said men to be certain to give appellee and his men a signal of warning before they backed any cars into the depot from the tracks, so that they would not be injured thereby; that on the morning before appellee and his men began to work on the wall he fully explained to the conductor of the switching crew the situation at the west end of the depot; that he and his men would necessarily have to be on the tracks in performing the work, and that it was a dangerous and close place, and requested the conductor to give them a signal of warning before backing any cars or engines into the depot on said tracks, a sufficient length of time so that they could avoid the danger and protect themselves from being injured or hurt thereby; that said conductor and the men who had charge of said crew, after appellee's explanation and request, promised him that they would give him and his men a signal of warning before backing and running any cars or engines into the depot, in ample time for them to protect themselves from injury; that while appellee was in the act of pitching the lifting-jack over the north track between the west end of the cars standing on the north track and the north bumping-post, and while standing with his knee close to the iron plate of said post, and relying upon the promise of the conductor and yard boss to give him a signal of warning as they had promised to do, appellant's employes carelessly and negligently, without giving any warning or signal, caused cars to be run into the east end of the depot on said track, and against the car on said track, with great force and violence, and in a moment's time jammed said car upon and against the bumping-post, and that before plaintiff could step either backward or forward his knee and leg were caught between the bumpers and the steel plate as aforesaid, by which his leg was injured to his damage, etc.
Before taking up for consideration the questions presented by the motion for a new trial, we will state generally what we gather from the evidence of important undisputed facts. Millikin had a contract with appellant by which he was to repair a brick wall at the west end of appellant's freight-depot in the city of Indianapolis, which had been broken down by a car which ran into it. He employed appellee to oversee the work. There were four railroad tracks inside the depot, extending from near the west end the full length thereof and out at the east end. At the west end of these tracks were bumping-posts to stop cars. Appellee had been at work for two days before he was injured, the accident occurring at 7:30 o'clock on the morning of the third day. The tracks were full of cars all...
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