Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Peck
| Decision Date | 28 November 1905 |
| Docket Number | 20,593 |
| Court | Indiana Supreme Court |
| Parties | Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company v. Peck |
From Cass Circuit Court; Joseph M. Rabb, Special Judge.
Action by Charles M. Peck against the Pittsburgh, Cincinnati Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Reversed.
George E. Ross, for appellant.
Kistler & Kistler, for appellee.
Appellee, on January 10, 1903, by a complaint in four paragraphs, instituted this action to recover for personal injuries sustained by him on account of the alleged negligence of appellant railway company.
The first and third paragraphs of the complaint were dismissed, and the cause tried on the second and fourth. A demurrer to each of the latter paragraphs for insufficiency of facts was overruled. On the issues joined the case was tried by a jury, and a verdict returned awarding appellee damages in the sum of $ 2,400. The court, over appellant's motion for a new trial, rendered judgment upon the verdict.
The errors assigned are to the effect that the court erred in overruling appellant's demurrer to each of the aforesaid paragraphs of the complaint upon which the cause was tried, and in denying its motion for a new trial.
It appears to be conceded by the parties that both the second and fourth paragraphs are based on the fourth subdivision of section one of the employers' liability act (Acts 1893, p. 294, § 7083 Burns 1901). Said section provides:
The fourth paragraph of the complaint alleges that the defendant, appellant herein, is a corporation organized under the laws of the State of Indiana, and owns and operates a steam railroad within and through said State, and within and through the city of Logansport, therein. It is alleged that in the latter city, on March 8, 1902, and long prior thereto, the defendant as a part of its railway system owned and operated a railway yard, consisting of various switches, tracks and spurs, extending in an easterly direction from a point near Berkley and Canal streets to a point near Seventeenth street in said city. On said day the plaintiff, appellee herein, was in the employ of the defendant as a switchman, engaged with others of its employes in switching cars, making up and separating trains of cars, and in discharging duties usually required of a switchman in a railway yard. There was used by the defendant for the purpose of switching and making up trains, etc., a locomotive engine which was in charge of a locomotive engineer who was an employe of the defendant. This engine was operated in the yards and on the tracks of the company. About 8 o'clock on the night of said day this engine in charge of said engineer was connected or attached to a cut of cars which was standing in said yard, and said cut was pulled in a westerly direction out onto one of the main tracks of the defendant's road for the purpose of clearing a switch which was connected with another track parallel thereto. The cut of cars was drawn past said switch connection and there stopped, "when and where," as stated or alleged by the pleader, "it became the duty of said locomotive engineer not to move or propel said locomotive and cars nor to back the same until signaled to do so by this plaintiff, or the conductor or an employe of said company in charge of and conducting the switching of said cars." The pleading then alleges that the plaintiff rode on the cut of cars in question down to the switch and alighted therefrom, and that after the cars had passed the switch he then "carefully and prudently started to cross said track, and while doing so his foot caught within the equipment of said switch connection and road structure and became fastened and held him secure; that he immediately tried to release himself from such retention, using due care and diligence in that respect, but was unable to do so before the injury hereinafter complained of; that while in such condition, but not being able to extricate himself and get off of said track, and without any signal to do so from this plaintiff or other person whose duty it was to signal such engineer, and in total disregard of his duty in that respect, said engineer in charge of said locomotive engine, as aforesaid, carelessly and negligently backed said cut of cars against and upon this plaintiff, thereby injuring him by crushing, maiming and mangling his right leg," etc.
Appellant's counsel insists that both of the paragraphs in question are insufficient...
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