Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Nicholas

Citation76 N.E. 522,165 Ind. 679
Decision Date05 January 1906
Docket Number20,665
CourtSupreme Court of Indiana
PartiesPittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Nicholas

From Henry Circuit Court; John M. Morris, Judge.

Action by Howard E. Nicholas against the Pittsburgh, Cincinnati Chicago & St. Louis Railway Company. From a judgment of the Appellate Court affirming a judgment for plaintiff defendant appeals under subd. 3, § 1337j Burns 1901 Acts 1901, p. 565, § 10.

Affirmed.

John L. Rupe and L. P. Newby, for appellant.

W. J. Beckett, Elliott, Elliott & Littleton and Eugene H. Bundy, for appellee.

OPINION

Montgomery, J.

Appellee brought this action for damages resulting from a personal injury received while in the employ of the appellant as a brakeman, and recovered a judgment of $ 7,500. This judgment was affirmed by division number one of the Appellate Court, and from that division this appeal is prosecuted.

By proper assignment of errors it is alleged in substance that the decision of the Appellate Court is erroneous in holding that the circuit court did not err in overruling (1) appellant's demurrer to the complaint, (2) its motion for judgment upon the answers of the jury to special interrogatories, and (3) its motion for a new trial.

It appears from the complaint that appellee was employed in appellant's yards in the city of Indianapolis, and at the time of receiving his injury was engaged in making up trains; that the conductor, to whose orders he was bound to conform, desiring to place a certain refrigerator-car on a particular track, directed him to go upon the car for the purpose of setting the hand brake thereon, after said car had been cut loose from the train or cut of cars to which it was attached, thereby checking its speed and stopping it at the proper point; that pursuant to such order, and in conformity thereto, appellee was at his post upon said car, and the conductor ran the train upon said track, but negligently failed to cut said car loose from the train and engine to which it was attached and which was propelling the same, and without having done so, or knowing that the same was done, negligently gave the engineer in charge of said engine a signal to stop said engine suddenly and quickly, whereby the car upon which appellee was stationed was caused to stop suddenly, and he was thereby violently thrown from the top of said car to the ground beneath said train, and injured.

The complaint is in a single paragraph, and the cause of action stated is founded upon section one of the employers' liability act (Acts 1893, p. 294, § 7083 Burns 1901). It is conceded by appellant's counsel that the complaint sufficiently shows that at the time of receiving his injury appellee was acting under orders of a superior, to whose orders he was subject, and required to yield obedience. It is insisted that the negligence on the part of the appellant is not sufficiently alleged, because it is not alleged that it was the duty of the conductor to cut off said car, or that he knew of appellee's perilous position at the time he gave the stop signal of which complaint is made.

It was shown that the conductor was in charge of the train and of the work in hand. In pleading it is not necessary that a duty be charged in specific terms, but it is essential and sufficient that particular facts and circumstances from which the duty arises be declared. It is a matter of common knowledge that the sudden stopping of an engine propelling a train of cars will result in a violent jerk of the cars at the end of the train remote from the engine. The conductor must have known this fact and its probable effect upon appellee, and his act in causing the train to be stopped in the manner and under the circumstances alleged was negligence. Taking all the averments of the complaint together, it sufficiently appears that the conductor owed appellee the duty either to cut off the car himself, or to cause it to be done, before giving the signal for a sudden stopping of the engine. It was not necessary to allege notice or knowledge on the part of the conductor of appellee's position on the car. It is averred that appellee was there in obedience and conformity to the specific order of the conductor, and, this being true, the conductor was bound to know and was chargeable with knowledge of his situation with all of its attendant perils.

The negligence of appellant's conductor in causing the car and the train to be quickly and suddenly stopped, as alleged, was the proximate cause of appellee's injury, and, as pleaded, constituted a cause of action under the provisions of the statute mentioned. No error was committed in overruling appellant's demurrer to the complaint. Louisville, etc., R. Co. v. Wagner (1899), 153 Ind. 420, 53 N.E. 927; Terre Haute, etc., R. Co. v. Rittenhouse (1902), 28 Ind.App. 633, 62 N.E. 295; Thacker v. Chicago, etc., R. Co. (1902), 159 Ind. 82, 59 L. R. A. 792, 64 N.E. 605; Republic Iron & Steel Co. v. Berkes (1904), 162 Ind. 517, 70 N.E. 815.

The answers of the jury to special interrogatories show, among other facts, that under the common practice and manner of conducting work in the yards, after receiving instructions brakemen were expected to look after their own safety in the movement of cars, without signals or warning; that it was the duty of the conductor to cut off said car before appellee fell from it; and that the accident occurred about 3 o'clock a. m. It is argued that since appellee was expected to look after his own...

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